Tag Archives: defamation

Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)

Additionally:

“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.

 

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The “Balancing” Test and Its Discontents

At the heart of the Supreme Court’s upholding of criminal defamation is the argument that the right to freedom of speech under Article 19(1)(a) must be “balanced” against the right to “reputation” under Article 21 (as I pointed out in my post about the judgment, the Court’s examination of the reasonableness of criminal defamation under Article 19(2) simply merges into its balancing test. No finding is returned with respect to the former – thus leaving balancing as the sole basis of the judgment).

The criminal defamation judgment is not the first time that the Court has resorted to “balancing” the textually guaranteed right under Article 19(1)(a) against unenumerated rights under Article 21 (R. Rajagopal and In Re Noise Pollution are two others). One problem is that the method of balancing has never been described – the “balancing” invariably leads to subordination of free speech to whatever right the Court decides to find under Article 21.

There is a deeper problem, however. The Court never justifies the balancing test in the first place. To understand why this is a problem, consider the famous American Supreme Court judgment in United States vs StevensPut simply, United States vs Stevens was about the constitutionality of a statute that prohibited the dissemination of videos depicting cruelty to animals. The State attempted to defend the statute by arguing that the “value” of such speech was far outweighed by the social interests advanced by its prohibition. Rejecting this argument by an 8 – 1 majority, the Court observed:

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.””

There is little I can add to the soundness of this reasoning, except to note that this applies with even greater force to the Indian Constitution than it does to the American. Textually, the American First Amendment is a broad, freedom of expression clause that contains no restrictions. On the contrary, Article 19(2) lists out eight restrictions upon the freedom of speech that can be imposed by law. The argument that the “balancing” between free speech and various social interests has already been achieved within the constitutional text is therefore far more compelling in the Indian context. Given that the framers (and then the amenders) specifically enumerated eight restrictions upon the freedom of speech within the constitutional text strongly suggests that the process of balancing has already been undertaken in the drafting of Articles 19(1)(a) and 19(2). It is not for the Court to further “balance” the freedom of speech against interests that do not form part of Article 19(2) (and certainly not by invoking the DPSPs and Fundamental Duties!)

Three further textual points support this reasoning. The first is that Article 19(2) does not contain a “public interest” restriction (as opposed to, say, Article 19(6)). This suggests a deliberate choice on the part of the framers to reject a general balancing between the freedom of speech and those “social interests” not specifically enumerated under Article 19(2). The second point is that where the Constitutional text intends such a balancing, it specifically says so. Article 25(1)’s freedom of religion guarantee, for instance, is expressly made “subject to” the other provisions of Part III. Article 19(1)(a) is not. A purely textual analysis, therefore, precludes “balancing” Article 19(1)(a) against other provisions of the Constitution. And the third point is that in Constitutions where the balancing test is part of free speech jurisprudence, it is based on specific textual guarantees that allow the State to limit free speech in the interests of “the rights of others” (something similar to Article 25(1)). Article 19(2) contains no such limitation.

Over the last twenty years, it has become established judicial wisdom that Article 19(1)(a) is to be “balanced” against Article 21 (in its capacious, ever-proliferating avatar), and even “balanced” against Part IV, and the fundamental duties chapter. This has come to a point where, in the criminal defamation judgment, the Court hasn’t even returned a finding on Article 19(2), preferring instead to decide the case on the basis of balancing. However, the Court has never interrogated the foundation of that claim (Shreya Singhal, which implicitly holds that restrictions upon freedom of speech must meet the test of Article 19(2) is an exception, as it is an exception in many other ways). Because of the strong textual evidence against this balancing exercise, the Court must show overwhelming reason why this method is constitutionally mandated. So far, it has not done so.

(Ed. My thanks to Jawahar Raja, whose strong objections to the balancing test made me rethink my own intuitive acceptance of it)

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The Bombay High Court’s Ruling on NSE’s Defamation Case against Moneylife

In a significant judgment delivered yesterday, the Bombay High Court rejected the National Stock Exchange’s application for injunction, in a defamation action, against the journalist Sucheta Dalal (and others), for articles published on the financial news website, moneylife.in. Justice Gautam Patel also imposed heavy damages upon the NSE, in what seems to be an acknowledgment of the need to put a halt to proliferating SLAPP lawsuits (although imposing damages in an injunction application without disposing off the main suit seems a little incongruous). The imposition of damages will be particularly controversial, but it is not an issue I will deal with here.

The case is significant because it adds to a growing body of (High Court) jurisprudence on the relationship between defamation and the freedom of speech and expression. The constitutionalisation of defamation law, which began in the 1994 judgment of the Supreme Court in R. Rajagopal’s Case, has enjoyed an uneven history over the last twenty years.  The Bombay High Court’s decision bucks an emerging trend of subjecting defamation law standardsto rigorous constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading advantages to users of certain high-end technology. The two articles were written on the basis of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but received no reply. A reminder email and a reminder SMS were also met with silence. After this failed correspondence, the two articles were published.

NSE claimed that the accusation was false, since the illicit advantage it talked about was technically impossible to arrange. NSE’s argument, consequently, was that the articles were defamatory, and not saved by the defences of truth, fair comment, or qualified privilege (the standard defences in civil defamation law).

In dealing with this submission, Justice Patel focused at length on Ms Dalal’s attempts at investigating the veracity of the claims made in the anonymous letter, and the NSE’s refusal to furnish her with the information they then put in their plaint, in order to argue that the Moneylife articles were false (i.e., the “illicit advantage” was not technically possible). Notice, however, that the common law of defamation is a strict liability offence: i.e., a false defamatory statement results in liability for the defendant, notwithstanding the care he or she took to establish its veracity. The relevance of Ms. Dalal’s investigations, therefore, depended upon modifying the common law standard of defamation, which is what Justice Patel proceeded to do. In paragraph 22, he noted:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this: that there is a material difference when the complainant plaintiff is a public persona or figure or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course, the classic decision in New York Times Co. v Sullivan, for its proposition that a public official cannot recover damages in a defamation action unless he proves with convincing clarity that the statement was made with knowledge of its falsity or with reckless disregard of whether or not it was false. This standard has been generally applied to public figures, but I will for the present, set this to one side since Sullivan seems to me to be closely hinged on the First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer to our conception of the law in the field, though the law it states is somewhat different, as Radhakrishnan J noticed, from our own standard. I do not think this distinction is material, given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials. Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very much a public body, then this standard must apply. In that situation, a demonstration that the defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for an injunction and a charge of malice.”

There is one crucial advance in this paragraph. In Rajagopal’s Case, the Supreme Court – following Sullivan – limited the higher threshold for defamation to public officials. As Justice Patel correctly notes, in the United States, “public officials” has subsequently been expanded to include public figures as well as issues of public importance. Although Justice Patel refuses to adopt the Sullivan standard here, in adopting the House of Lords decision in Reynolds, he definitively extends the threshold to public bodies and public figures. This is important, because a number of SLAPP defamation suits have been brought by large-scale private corporations that are (at least arguably) performing public functions. Justice Patel’s reasoning, therefore, opens the door to heightened scrutiny being applied to private corporate defamation claims as well. Something similar had been attempted six years ago by Justice Ravindra Bhat of the Delhi High Court in Petronetwhere in a claim injunction against disclosure of confidential information, a company with 50% state shareholding, and performing the important public function of gas distribution, was held to a Pentagon Papers-level threshold. Petronet, however, did not directly deal with defamation law. The Bombay High Court’s judgment is squarely on point.

It must also be noted that Rajagopal is a highly confusing judgment, which Justice Patel attempts to clarify in at least two ways. FirstRajagopal cites both Sullivan and Reynolds, which lay down very different tests, but does not specify which of them it is adopting. Justice Patel clarifies that he is adopting the latter. SecondlyRajagopal is entirely unclear about the issue of burdens. Under the Sullivan test, the burden of showing that the defendant acted with reckless disregard of the facts is upon the plaintiff. Under Reynolds, the burden of demonstrating reasonable verification of facts is upon the defendant. Justice Patel seems to adopt the latter, when he notes:

… where there is a factual demonstration of sufficient steps being taken to ascertain the ‘other side of the story’ and this opportunity, when presented, has been ignored, no more can be expected if it is also shown that the article when published was not unreasonable in its content, tone and tenor.”

In other words, insofar as a publication relates to a public official, public body or public figure, it is enough of a defence for the defendant to show that even if the publication is false in some respect, she acted only after a reasonable verification of the facts.

Unfortunately, much of the lucidity in the judgment so far is jeopardised in a rather unfortunate paragraph 26. Here, Justice Patel notes:

“For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.”

Unfortunately, just like Rajagopal did, this paragraph conflates two very distinct legal standards. “Actual malice” and “reckless embracing of falsehood” is the Sullivan test, which requires proof of either intentional lying, or reckless disregard of truth. “Good faith” and “reasonable belief” in truth is modeled upon the tests currently in vogue in Canada, the UK and South Africa. “Reasonableness” is one step below “recklessness”, and imposes an affirmative burden upon the publisher to take certain measures towards establishing the truth of her claims. There is a further issue with the use of “qualified privilege” without explaining what, precisely, it means. Qualified privilege has now been statutorily abolished in the United Kingdom, and carries a very different meaning in Australia (applicable to statements on matters of political importance).

It is also a little unfortunate that the judgment makes very little mention of the appropriate legal standards to be followed in deciding upon an injunction in a defamation case. The High Courts of Delhi and Bombay have taken opposite views on the issue. The correct position at common law was laid down long ago in Bonnard vs Perryman, and prohibits the grant of an injunction unless it can be shown that the defendant has almost no chance of success at trial. In an otherwise erudite judgment, the failure to deal with the common law precedent directly on point is disappointing.

As an aside, it may also be noted that this judgment has an ancillary effect upon the criminal defamation challenge that has been reserved by a two-judge Bench of the Supreme Court. In affirming that civil defamation law allows for false defamatory statements to escape liability as long as they have been made after reasonable verification, it is once again established that Indian defamation law is unique in that, as it stands, criminal defamation is more stringent than civil defamation. It is to be hoped that this fact will be considered by the Supreme Court in deciding whether to strike down or read down Sections 499 and 500 of the IPC.

To sum up: Justice Patel’s judgment is significant in that it extends the higher threshold of defamation from public officials to all public figures or public bodies. It also seems adopts the Reynolds defence of reasonable verification of facts in case of false defamatory statements, with its attendant evidentiary burdens. Depending on how you read Rajagopal, this may or may not be correct. In any event, it is important to note, once more, that Sullivan (actual malice) is not equivalent to the reasonableness standard, but is considerably more speech-protective. We still await clarity for which of those standards is to be adopted under Indian civil defamation law.

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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)

The Delhi High Court, in an order dated 16th 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 30th 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 10th 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.

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