Civil Rights at the Bar of the High Courts: The Madras High Court on Gag Orders and the Kerala High Court on Voting Rights

Two High Court judgments delivered this month have restated certain important constitutional principles.

The Madras High Court and Injunctions

The first is the judgment of the Madras High Court in Ms Menaka v Arappor Iyakkam, delivered on 3 June by R. Subramanian J. In this case, a politician and certain government contractors [“the Applicants”] had filed a defamation suit against the Respondents. The Respondents had published certain claims regarding corruption in the award of government contracts involving the applicants. The applicants also filed for a broad, pre-trial injunction/gag order, asking the Court to “grant an order of ad-interim injunction, restraining the respondents/defendants their men and agents from in any manner, holding any press meet, releasing or distributing any statement to the Print and Electronic Media or to any one against the applicant/plaintiff and its business imputing the character or insinuating the reputation or linking the name of the applicant/plaintiff with any person(s) or defaming the name of the applicant/plaintiff in any manner, pending disposal of the above suit.”

These widely-worded prayers for injunctions are an increasingly common feature of defamation suits, and are granted with frequent regularity. As I argued recently, the purpose of such prayers is to effectively shut down any speech about the applicant by the respondent, until the final disposal of the suit (which could take years). This is because the civil law of defamation comes with certain inbuilt defences (truth, fair comment, etc.). In other words, you can make a defamatory statement (i.e., any statement that lowers the reputation of the plaintiff) without committing defamation (if that statement is true, or a fair comment etc.) However, these broad-ranging prayers, in the way they are framed, effectively take away the option of defences altogether, thus settling the case in favour of the plaintiff before a trial.

In this case, however, the Subramanian J. refused to grant the injunction prayed for. What is remarkable about his judgment is how unremarkable it is: Subramanian J. reached his conclusion not by making grand statements about the freedom of speech, but simply by following the law. As he noted, the common law rule in Bonnard v Perryman was clear: if, in a defamation suit, the defendant pleaded justification (i.e., the defence of truth), then a Court could only grant an injunction if it was prima facie clear that the defendant had no chance of proving the defence at trial. (paragraph 20) Bonnard v Perryman had been followed by the Delhi High Court in Tata Sons v Greenpeace (paragraph 26), and continued to be good law in England (paragraphs 24 & 25) as well as in Canada (paragraph 29). Consequently, Subramanian J. held that:

An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. (paragraph 30)

On the facts before him, Subramanian J. found himself prima facie satisfied that the Respondents were not acting out of malice, and that the veracity of their statements would have to be tested at a trial (i.e., they could not be declared false out of hand) (paragraphs 36 – 40). That was enough for him to decline – on the basis of existing law – the prayers for injunction.

Subramanian J. also made it clear that the case presented no privacy claims, as the comments concerned a politician’s official functions (paragraph 24). He, therefore, nipped in the bud what has become (of late) a disturbing tendency to invoke the Supreme Court’s privacy judgment in Puttaswamy as a sword to curtail other rights, rather than as a shield against State intrusion (paragraphs 31 – 33) (a good example of this is the Ramdev injunction, which the Madras High Court expressly declined to follow).

The Madras High Court’s judgment joins a slow – but hopefully steady – judicial push back against trigger-happy judicial injunctions in defamation cases – a trend exemplified by the Bombay High Court recently, as well as the Karnataka High Court lifting the gag order in the Tejaswi Surya case.

The Kerala High Court and Voting Rights

The second judgment comes from the Kerala High Court. A. Subair v The Chief Election Commissioner involved the deletion of a voter from the voting rolls, on the basis of a “house to house check.” The State also argued that a draft electoral roll had been published, and objections had been invited from deleted individuals. Rejecting this argument, and reading S. 22 of the Representation of the People Act – which required an opportunity to be heard – the Chaly J. held that “… the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned. Bearing the said aspects in mind, it is clear, no such serious exercise is undertaken by the officer, before removing the name of the petitioner. It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law.“ (paragraph 10)

The highlighted part is particularly crucial. This is because, in recent years, there have been reports of large-scale voter deletions, caused by the use of faulty software by the EC. In other words, deletions happen through an automated process. This has been challenged in the Hyderabad High Court where the case has been pending for many months now. One of the crucial issues at stake involves the concept of the “right to an explanation”: that is, if I am deprived of a right by an automated decision, taken by a machine, then I have the right to be given an explanation for how that decision has been taken.

One of the major arguments use to dodge that in the case of voter deletions is that the right to vote is merely a statutory right. As I have attempted to explain before, that argument is flawed: voting is a statutory right in the sense that the procedure and modalities of voting are determined by statute, but the act of voting itself is a fundamental freedom protected by Article 19(1)(a) of the Constitution. Therefore, the denial of voting altogether is a constitutional violation, and must be treated as such. Consequently, whether or not the Election Commission uses technology to “clean up voter rolls” (and the constitutional issues with that are another matter), the basic point remains that before a voter’s name is deleted, they must be heard: as the Kerala High Court correctly observed, the process where the name is first deleted, and then the burden is placed upon the voter to come forward and protest, is entirely illegal – no matter how well-publicised the deletions are, and how many “opportunities” are given.

The underlying basis should be obvious: the burden of being able to exercise a fundamental right is not on the citizen, but upon the State, when the latter seeks to deprive her of it. The Kerala High Court judgment is a crucial endorsement of that rather basic constitutional principle; and it is to be hoped that in the ongoing challenges to the EC’s actions before the Hyderabad High Court, that principle will be adhered to.

The Supreme Court and Memes

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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Last week, I had written about the Punjab & Haryana High Court’s patently illegal order, where it made the quashing of an FIR conditional upon the accused paying a sum of Rs. 10 lakhs. This sort of behaviour appears to be infectious: today’s Supreme Court order directing Priyanka Sharma to “tender an apology” for sharing a meme about West Bengal CM Mamata Bannerjee is yet another example of the judiciary abdicating its role as the guardian of fundamental rights, and opting to play moral censor instead.

The facts are straightforward. Priyanka Sharma was arrested – and then sent to fourteen days’ judicial custody for sharing the following meme on Facebook:

This is, evidently, the head of CM Mamata Bannerjee photoshopped upon Priyanka Chopra’s costume at the met gala. The West Bengal police deemed it fit to book Sharma under Sections 66A and 67A of the IT Act, and Section 500 of the IPC. A moment’s reflection should make it clear that this entirely unsustainable. Section 66A was struck down as unconstitutional in March 2015, more than four years ago. Section 67A – the only non-bailable provision among these – which penalises transmitting images of sexually explicit acts or conduct, is inapplicable on the face of it. And it’s unclear how a piece of pure political satire attacks the reputation of the CM in a way that might bring it within the definition of defamation.

This, therefore, was not even remotely a case where remand was justified. When the petitioner approached the Supreme Court with a habeas corpus petition, therefore, there was an immediate opportunity to set things right. There was also a larger opportunity: this is not the first time that people have been arrested or remanded for making memes. Across India, for many years now, there have been reports of similar instances, where the police appear to act upon political directions, and the magistrates – the first lines of defence – act as rubber stamps. Clear orders from the Supreme Court, in this case, could have gone a long way in discouraging this practice.

Instead, what happened at the Court today makes for grim reading. Instead of limiting itself to its job – to see whether the remand was justified – the Court promptly entered into the merits of the case itself. According to Indira Banerjee J. , it was “wrong to put one person’s face on another” (welcome to the 21st century!). According to Sanjiv Khanna J., the problem was that Sharma was from “an opposite political party, and not a common citizen” (what does that have to do with bail?). The judges then dictated an order where, originally, Sharma’s release was made conditional upon her apologising (an order that would have been patently illegal for the same reasons that I have discussed in my previous post about the P&H High Court), but then recalled that, made her release unconditional, but nevertheless directed her to apologise. In addition, they left the “larger question” (of making memes?) open.

But in some ways, this is even worse. Presumably, if Sharma refuses to apologise, it will amount to contempt of court, and she will be subjected to prosecution. Effectively, then, the Court has told her to apologise or face the possibility of jail time. This, however, is nothing other than compelled speech: forcing a person to say something that they would rather not, on the thread of sanction. And compelled speech is as serious a violation of Article 19(1)(a) as limitations upon expression. In other words, this is yet another example of (lawless) judicial censorship – a trend begun in the days of Dipak Misra J., and now carried on by worthy successors – which finds no basis in the Constitution.

It hardly needs to be stated – yet again – that none of this had anything to do with the question of whether or not Sharma should have been granted bail.

At a more deeper level, today’s hearing reveals yet again the sad truth that when it comes to free speech issues, judges seem simply incapable of applying the law and the Constitution. The standard they do seem to apply is “if I don’t like it, it must be wrong, and I’m going to do something about it.” That would be fine if they were sitting as family elders mediating a domestic quarrel; it certainly isn’t fine when they are sitting as judges in a constitutional court.

This almost visceral unease with any form of expression that seems to go beyond judges’ personal comfort zone is evident from Banerjee J.’s anguished “it is wrong to put one person’s face upon another”, and her Delphic “free speech is non-negotiable, but it ends where the rights of others begin.” On the second point, apart from the fact that no “right” of anybody else was involved in this case (not even the “right to reputation” that Dipak Misra J. bizarrely raised up to the status of Article 21 in the criminal defamation case), it’s also important to note – on a point of law – that unlike many other Constitutions, the Indian Constitution does not limit free speech on the basis of a generic “rights of others” clause; Article 19(2) is entirely specific about the grounds on which free speech can be restricted, and it is not open to the Court to traverse beyond them. And on the first, Banerjee J.’s reaction to the arcane concept of photoshop is itself worthy of a meme, but since the legality of that is now in doubt until the Supreme Court hears the “larger issue”, we must make do with a generic meme:

Last week, it was the P&H High Court saying “[unsustainable criminal] charges against you will be quashed, but pay Rs. 10 lakhs for the privilege.” Today, it is the Supreme Court saying, “your [illegal] remand will be quashed, but you must apologise.” It remains to be seen what novel way the courts will find next week to show us that they couldn’t care less about following the law and the Constitution on issues of free speech.

Guest Post: On Free Speech and Jurisdictional Issues in Online Defamation Cases

(This is a guest post by Raghav Kohli.)

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An overwhelming cavalcade of technological innovations since the last century has redefined the relationship between law and technology; the Indian Judiciary, quite helplessly, has been playing catch-up ever since. Recently, in one of many such instances that demonstrate the awkwardness of Indian judges in engaging with technology, the Supreme Court in M/s Future Gaming and Hotel Services Pvt. Ltd v. Malayala Manorama & Ors passed an order confirming the regressive approach of Indian Courts towards jurisdictional issues arising out of the online dissemination of free speech.

The facts, briefly, were as follows: The Respondents, a Malayalam Vernacular Daily Newspaper, published a news article on 22-04-2015 that was also made available online on their website. A complaint was lodged by the Petitioner, before the Chief Judicial Magistrate, East and North, at Gangtok (hereafter CJM), inter alia, on grounds that the news so published had defamed the Petitioner Company. The CJM issued process of summons against the Respondents, who subsequently filed a Petition under Article 482 of the Code of Criminal Procedure (hereafter CrPC) before the High Court of Sikkim at Gangtok for quashing the complaint and setting aside the summon order. The High Court quashed the complaint for want of territorial jurisdiction of Courts in Sikkim as the Complainant had “failed to point to any person who has in fact read the online version or downloaded the same to make the offence under Section 499 of the IPC complete and thereby extend jurisdiction to the Courts in Sikkim” (paragraph 9).

Consequently, the Petitioners filed a Special Leave Petition before the Supreme Court, which set aside the decision of the Sikkim High Court. It was held that the complaint could not be quashed at this stage since the list of witnesses contained residents of Sikkim, who proposed to give evidence to the effect that the alleged offence had taken place in Sikkim. The division bench of AK Goel, J. and UU Lalit, J. thus impliedly confirmed that in cases of online defamation, courts could assume jurisdiction in any place where the impugned material is accessed.

The Law

Before addressing the question of why such an approach is problematic, it is of pertinence to analyse the rules governing the territorial jurisdiction of courts in civil and criminal cases. Among other provisions to determine jurisdiction in Chapter XIII of the CrPC, Section 179 provides that “When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.” Similarly, Section 19 of the Code of Civil Procedure (hereafter CPC) provides that “where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Court”.

Traditionally, courts have interpreted Section 19 of the CPC and Section 179 of the CrPC expansively in offline defamation cases to extend territorial jurisdiction to not only Courts at the place where the defamatory statement is first made and published (in the sense of the statement being communicated), but also where it is subsequently published, circulated and read. For example, in Dr. Subramaniam Swamy vs Prabhakar S. Pai, the assailed statement was made at Chandigarh at a press conference, but also later published by the Indian Express in Bombay. The Bombay High Court held that “the consequence of the statement made at Chandigarh has been completed at Bombay by circulation of the said newspapers, and, therefore, the offence of defamation is complete in the City of Bombay. In view of the provisions of S. 179 of the Criminal P.C. both the Courts, at Chandigarh and at Bombay, will have jurisdiction to entertain a complaint under S. 500 of the Indian Penal Code.” Similarly, the Karnataka High Court in P.Lankesh and Another v. H. Shivappa & Anr., held that “It cannot be said that the act of publication comes to an end as soon as one issue of the newspaper is released at one place … If the defamatory imputation is made available to public at several places then the offence is committed at each such place. Though the first offence may be committed at the place where it is printed and first published, it gets repeated wherever the newspaper is circulated at other places.”

The Law in the Online World

The issue arises when Courts apply the same standard for determining jurisdiction in cases of online dissemination of speech; and High Courts across India have done that unanimously. In fact, the Delhi High Court as recently as in the 2016 case of Frankfinn Aviation Services Pvt. Ltd v. Tara Kerkar & Ors held that by putting defamatory material on the internet, “territorial jurisdiction does not remain confined to the place of actual defamation … (and) jurisdiction would be at both places i.e. the place where the actual defamation takes place and the place where such defamatory material is transmitted through website”. Even the Sikkim High Court in the Malayala Manorama case would have found that Courts in Sikkim are competent to exercise territorial jurisdiction if only the Petitioner had produce a person who had read (or downloaded?) the online version in Sikkim.

However, courts have conveniently chosen not to engage with the detrimental consequences of adopting such an expansive approach on free speech. By allowing for the assumption of jurisdiction by any court situated at a place where the website may be accessed, courts have failed to appreciate the inherent distinctions between traditional media and new digital media, and effectively permitted individuals to “create” territorial jurisdiction in online defamation cases as per their convenience across the country (at least). Consequently, this provision has been systematically used to harass journalists, authors, and other individuals, who are forced to travel to remote locations at great personal expense. In fact, Human Rights Watch in 2016 reported several such instances of harassment, with the Tamil Nadu government, for example, having reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016.

The hardship faced by an accused is further augmented as there is no cap on the number of cases that may be filed against him or her under Section 199, CrPC, which lays down the procedure for prosecution. It is also settled law that the exceptions to defamation are only considered after the trial commences in light of Section 204, CrPC, read with Section 105 of the Indian Evidence Act (reiterated in paragraph 198 of Subramanium Swamy v. Union of India). Thus, the accused has minimal safeguards at the time of issuance of process against unscrupulous allegations. Although Section 202, CrPC mandates that the Magistrate postpone the issue of process for deciding whether or not there are sufficient grounds for proceeding in cases where the accused is residing at a place beyond his/her jurisdiction, it often does not afford adequate protection to the accused against harassment, making the process a punishment in itself. This is also applicable to the rare occasions when the accused may be allowed to appear via video conferencing (as was done in the Malayala Manorama case), which engenders its own set of issues.

The Chilling Effect

The cumulative effect of these draconian procedures is a “chilling effect” on speech, which prompts people to engage in self-protective censorship in fear of penalisation. Although this concept has formed an essential part of First Amendment phraseology and jurisprudence in the United States since the 1950s, it was adopted into our free speech jurisprudence much later (starting with the Delhi High Court). The Indian Supreme Court has now recognised this concept in several cases, such as R. Rajagopal v. State of T.N, where the Court modified the common law of civil defamation and noted the chilling effect caused by a no-fault liability standard (paragraph 19). Similarly, in S. Khushboo v. Kanniammal, the Court observed that the law “should not be used in a manner that has chilling effects on the freedom of speech and expression” (paragraph 29). Most famously, in the widely celebrated judgment of Shreya Singhal v. Union of India, the Supreme Court invoked the principles of “vagueness” and “overbreadth” in addition to the chilling effect to strike down Section 66A of the IT Act in 2015 (paragraph 90).

Interestingly, in the case of Subramanium Swamy v. Union of India, in which the Supreme Court upheld the constitutionality of criminal defamation, a similar argument was made by some of the petitioners (Read paragraph 20 of Mr. Arvind Datar’s submission here) against the procedure governing the prosecution of defamation under the the CrPC. It was argued that such rules amounted to procedural unreasonableness and imposed a chilling effect on speech, and were thus unconstitutional. The Court’s response to this submission is a classic example of how judges often conveniently disregard engaging with the submission made, and dismiss it by merely reiterating the settled law.

After noting the abuse of procedural laws and summarising the law on territorial jurisdiction contained in Sections 176-179 and Section 186 of the CrPC, the Court observed: “Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional” (paragraph 195). The Court failed to even acknowledge that the chilling effect argument made was premised upon the inadequacy of the so-called “appropriate steps in accordance with the law.”

Similarly, on the argument of considering the exceptions under Section 499 at the time of summoning the accused, the Court summarised the settled position of law that those who plead an exception must prove it, and observed: “Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same” (paragraph 198). Apparently, using “therefore” multiple times in a sentence sufficed as a justification.

Lessons from Abroad 

In fact, it was in response to similar issues arising out of the online dissemination of speech such as forum shopping and stifling of free speech that foreign jurisdictions such as the United States evolved restrictive tests to determine “personal jurisdiction” (or, the court’s jurisdiction over the parties in a suit) in online defamation cases. The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction (even where a long arm statute exists) “over a foreign defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing `minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional notions of fair play and substantial justice.’ Sufficient minimum contacts will give rise to either specific or general jurisdiction. General jurisdiction exists when a defendant’s contacts with the forum state are unrelated to the cause of action but are `continuous and systematic.’ Specific jurisdiction arises when the defendant’s contacts with the forum ‘arise from, or are directly related to, the cause of action.’” (Revell v. Lidov at paragraph 20) The mere accessibility of data hosted on a website in the forum state has consistently been held to be insufficient by both standards for the forum court to assume jurisdiction. The court, therefore, determines jurisdiction based on different criteria such as the active or passive nature of the website (as per the “Zippo Sliding Scale”, for example, established in the case of Zippo Manufacturing Co v. Zippo Dot Com Inc.), or, by applying the “effects test” (established in Calder v. Jones, to adjudge whether the effects caused by an defamatory article in the forum state were specifically directed and intended towards it as to confer jurisdiction upon it).

The 2002 decision of the United States Court of Appeals, Fifth Circuit, in Revell v. Lidov is a good illustration of the application of these concepts. The brief facts are as follows: Revell (a resident of Texas) sued Lidov (a resident of Massachusetts) and Columbia University (whose principal office were in New York City) in the Northern District of Texas for defamation arising out of Lidov’s authorship of an article that he posted on an internet bulletin board hosted by Columbia. The district court dismissed Revell’s claims for lack of personal jurisdiction over both Lidov and Columbia as it found the website to be “Zippo-passive”. When this decision was appealed before the Circuit Court, the issue to be determined was whether the operation of an internet site supported the minimum contacts necessary for the exercise of personal jurisdiction. It was held that owing to both the low level of interactivity of the website, and inapplicability of the “effects” test, specific personal jurisdiction could not be established in Texas. It was observed that “the post to the bulletin board here was presumably directed at the entire world, or perhaps just concerned U.S. citizens. But certainly it was not directed specifically at Texas… As these cases aptly demonstrate, one cannot purposefully avail oneself of ‘some forum someplace’; rather, as the Supreme Court has stated, due process requires that ‘the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’” Similarly, it was held that general personal jurisdiction could not be established as the “maintenance of a website is a continuous presence everywhere in the world” and does not amount to a “substantial” contact.

It is also interesting to note that while Indian courts have continued to apply traditional jurisdictional rules in online defamation cases, they have increasingly turned to the progressive US standards in trademark infringement disputes. For example, in the landmark case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr, the Court held that it had jurisdiction over the defendant but it did not get attracted merely on the basis of interactivity of the website which is accessible in the forum state, but on the basis that viewers in the forum state were specifically targeted by the Defendant Website. In an extensive analysis of tests adopted by different jurisdictions to assume territorial jurisdiction, Justice S. Muralidhar went to the extent of noting that “While courts have more readily applied the ‘effects’ test in defamation cases [see Remick v. Manfredy, 238 F.3d 248 (2001); Noonan v. Winston Comp., 135 F.3d 85, 91 (1998)]; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) there have been problems in its application to trademark infringement cases” (paragraph 25). This progressive approach to determine jurisdiction has been reiterated in several High Court decisions such as the 2017 decision of the Delhi High Court in Federal Express Corporation v Fedex Securities Ltd. & Ors.

Justice Brennan in the US Supreme Court decision of NAACP v. Button famously remarked that freedom of speech needs “breathing space to survive”. Adopting a regressive approach towards jurisdictional issues arising out of online speech inhibits exactly that. It is hoped that the Indian Supreme Court on a suitable occasion in the future will deliberate on these arguments, and step up to protect this freedom from being choked.

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.

 

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 Stevens. Put 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.

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

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 Petronet, where 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. First, Rajagopal 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. Secondly, Rajagopal 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.

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.