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Aditya AK and Meera Emmanuel
India currently ranks an abysmal 138th in the Press Freedom Index 2018, which gauges the amount of freedom journalists have to pursue stories, and how the authorities respect this freedom.
It is interesting to see the role the courts played in ensuring a free press. To this end, we have compiled some of the cases involving freedom of the press dealt with by courts over the past year.
While the courts have reiterated the importance of the press freedom in judgments, they have also passed gag orders, particularly in cases involving high-profile litigants.
Another discernible trend is that in these types of cases, the lower courts have freely passed orders curbing reportage. These orders, in turn, have been set aside by the higher judiciary.
So how have the courts ruled on the topic of Press Freedom over the past year or so?
The Right to Know
In March this year, the Bangalore City Civil Court passed an interim injunction against over forty media houses as well as social media platforms from publishing defamatory statements against BJP candidate and lawyer Tejasvi Surya. Surya had filed a defamation suit in the civil court after several publications carried news stories reporting allegations of abuse against him.
However, the Karnataka High Court was quick to effectively overturn the gag order, noting that citizens have a right to know all information about contesting candidates. The Bench eventually held that if Surya were to be aggrieved by any defamatory news item, he would be at liberty to approach the Election Commission.
SLAPPs in the face
Over the past year, Anil Ambani’s Reliance Group was particularly litigious, filing multiple defamation suits against various publications. The exorbitant amount of damages sought in each of these suits raised many an eyebrow. They were able to do this thanks to the Gujarat Court Fees Act, 2004, which caps the court fee for cases filed in Gujarat at Rs. 75,000. In effect, a plaintiff in the state may seek an unlimited amount of damages for a relatively measly sum of Rs. 75,000.
As of October 2018, Reliance Group and its companies filed civil defamation suits against three publications – NDTV, The Citizen, and The National Herald – seeking damages amounting to a whopping Rs. 22,000 crore. A month later, it instituted another suit against The Wire, seeking damages of Rs. 6000 crore.
The Wire was also targeted by Jay Shah, who successfully got a gag order from the Gujarat High Court in his Rs. 100 crore defamation suit. The matter is currently pending before the Supreme Court.
Protecting its own
In April last year, the Patiala House Court passed an order restraining media houses from reporting on the investigation in the medical college bribery case registered against former high court judge, Justice IM Quddusi.
The Court was of the prima facie view that the publications are bound to bring disrepute to the plaintiff and might lead to obstruction of justice. It, however, allowed media houses to report on any court proceedings in the matter.
A Shelter for Press Freedom
In August last year, the Patna High Court restrained the media from reporting on the Muzaffarpur Shelter Home case, stating that press reportage may hamper the investigation.
However, this order was set aside by the Supreme Court, which appealed to the media to report on the case in a responsible manner. In the interest of the victims in the case, the Supreme Court prevented the media from carrying their images or interviewing them.
In Search of the Truth
Back in 2017, the Mumbai City Sessions Court passed a gag order preventing the media from reporting on the proceedings of the Sohrabuddin case. Court reporters subsequently protested against the order. While lauding the media for its efforts, the judge saw it fit to allow the application, citing the sensational nature of the case as the reason for doing so.
However, the gag order was set aside by the Bombay High Court in January 2018. Justice Revati Mohite-Dere observed that given the chequered history of the case, the public was interested and had every right to be kept abreast of developments. She also added that mere allegations of sensationalism in reportage was not cause enough to prevent the media at large from reporting.
On the publication of ‘Secret’ Documents
In April this year, the Supreme Court effectively batted for the freedom of the press while dismissing the Central Government’s preliminary objections to hearing the review petitions against the Court’s December 2018 Rafale verdict. The Government had objected to the petitioners’ reliance on a “stolen” confidential notes prepared by the Defence Ministry.
The note assumed the limelight after The Hindu broke a story in March 2019 titled ‘No bank guarantees meant a more expensive new Rafale deal’ based on these notes.
The Court was, however, was emphatic in their rejection of this preliminary objection, stating,
“There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.”
The Court also observed that the publication of such documents by The Hindu was in consonance with the constitutional guarantee of freedom of speech, as consistently endorsed by the Apex Court in a long line of judgments.
“In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras and Brij Bhushan vs. The State of Delhi,” states the judgment.
Freedom to combat a Nazi State
Justice PN Prakash of the Madras High Court made a strong case in favour of the freedom of the press and media when he emphasised,
“India is a vibrant democracy and the fourth estate is indubitably an indispensable part of it. If the voice of the fourth estate is stifled … India will become a Nazi State and the hard labour of our freedom fighters and makers of our Constitution will go down the drain.“
He also opined that this freedom must be protected, regardless of occasional transgressions, in view of its role in a democracy.
“…the Press has got a solemn duty to place all the concatenation of events, both recent past and distant past, concerning political parties and public figures, for public consumption and for refreshing the otherwise short public memory. For doing this, if the Press is gagged, democracy in this country will be in utter peril…There may be some occasional transgressions by the Press, however, in the larger interest of sustaining democracy, those aberrations deserve to be ignored.“
The observations were made while quashing defamation proceedings initiated in 2012 against the Tamil edition of the weekly magazine, India Today.
In the name of Privacy
The Supreme Court’s landmark right to privacy ruling made its impact on redefining the limits of the freedom of the press when the Madras High Court cited the same to restrain a media house from publishing articles touching upon the private life of Kanimozhi Karunanidhi. In his judgment, Justice R Subramaniam held that,
“The theory that there cannot be a prior restraint or a gag order upon the Press or Media stands diluted, after the judgment of the Hon’ble Supreme Court in Justice KS Puttaswamy’s case.”
While it admitted that there cannot be any blanket injunction on the publication rights of the press, the Court emphasised that the media “cannot in the guise of public interest publish anything and everything, which may be interesting.” On this aspect, Justice Subramaniam went on to remark,
“As has been pointed out by Hon’ble Mr Justice Sanjay Kishan Kaul in Justice KS Puttaswamy’s case, all matters in which the public [is] interest may not be in public interest.”
Free speech the Lifeblood of Democracy
A series of videos released by Investigative journalism house Cobrapost as part of their documentary titled ‘Operation 136: Part II’ raked up a storm when it accused various media houses of being paid news outlets. A plea made by the newspaper Dainik Bhaskar had led to an ex parte interim stay on the release of the documentary by a single judge of the Delhi High Court.
However, on appeal, the stay was overturned by a Division Bench of the Court, which observed,
“If courts are to routinely stifle debate, what cannot be done by law by the State can be achieved indirectly without satisfying exacting constitutional standards that permit infractions on the valuable right to freedom of speech.”
Emphasizing on the right to free speech in a democracy, it was also observed that even the challenges posed by “the new age media, especially the electronic media and internet posts” cannot per se “dilute valuable right of free speech” which is the “lifeblood of democracy”. The Court went on to emphasise that when a pre-publication injunction is sought, the threshold for granting an ex-parte relief is “necessarily of a very high order”.
The Bench of Justices S Ravindra Bhat and AK Chawla also commented,
“The Members of the public and citizens of this country expect news and fair comment as to whether a public institution – including a media house or journal … functions properly. In case there are allegations which result in controversies as to the reliability of the news which one or the other disseminates to the public, that too is a matter of public debate.”
No Blanket Ban
Reportage of a PIL filed highlighting the controversy surrounding the appointment of a Rajasthan Additional Advocate General, Abhinav Sharma had led to an ex parte interim gag order against Bar & Bench by the Rajasthan High Court. While allowing Sharma’s application for a gag on the story, the High Court directed Bar & Bench to pull down the story.
On an appeal by Bar & Bench, however, the Supreme Court stayed the High Court’s interim order, effectively lifting the media gag imposed by the High Court in the matter.