Delhi HC restraining order from reporting allegations against Justice Swatanter Kumar


Court :
Delhi High Court

Brief :
Important highlights from the judgment by Justice Manmohan Singh: ''It is thus a question of fact which has to be examined on case to case basis as to what constitutes the offending publication which may result in future obstruction of justice after examining the content of the publication and its likely effect on the public.'' ''In the instant case, the identity of the plaintiff is already disclosed prior to approaching this Court, however, the plaintiff states that the photograph of the plaintiff is repeated shown in the national dailies and televised news on day to day basis with an attempt to create an adverse public image''

Citation :
Express Newspapers (Private) Ltd. & Anr. vs. The Union of India & Ors., 1959 S.C.R. 12 Romesh Thappar vs. State of Madras, AIR 1950 SC 124 Brij Bhushan vs. State of Delhi, AIR 1950 SC 129 Express Newspapers Pvt. Ltd. & Ors vs. Union Of India, AIR 1986 SC 872 Reliance Petrochemicals Ltd vs. Proprietors Of Indian Express, AIR 1989 SC 190 Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 Surya Prakash Khatri vs. Madhu Trehan, 2001 (92) DLT 665 ESPN Sofftware India Private Limited vs. M/s Tudu Enterprises and Others Indian Performing Right Society Ltd. Vs. Badal Dhar Chowdhry and Ors., 2010 (43) PTC 332 (Del.). Vishaka vs. State of Rajasthan, (1997) 6 SCC 241 Sahara India Real Estate Corporation Limited and Others vs. Securities and Exchange Board of India & Another, (2012) 10 SCC 603

.* IN THE HIGH COURT OF DELHI AT NEW DELHI

 

%       Order Pronounced on: January 16, 2014

 

+   I.A. No.723/2014 in CS(OS) No.102/2014 

 

 SWATANTER KUMAR      ..... Plaintiff 

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Through Mr.Mukul Rohatgi, Sr.Adv.,

Mr.A.S.Chandhiok, Sr.Adv.,

Mr.Rajiv Nayar, Sr.Adv., 

Mr.Neeraj Kishan Kaul, Sr.Adv., 

  Mr.Vinay Bhasin, Sr.Adv.,  

  Mr.Maninder Singh, Sr.Adv.,

  Mr.Kirti Uppal, Sr.Adv.,

  Mr.Sandeep Sethi, Sr.Adv., 

Mr.Aman Lekhi, Sr.Adv. with

Mr.Sudhir Walia, Mr.Ralan

Karanjawala, Ms.Fareha Ahmad

Khan, Mr.Abhijat, Mr.Mohit Mathur,

Mr.P.Banerjee, Ms.Manmeet Arora,

Ms.Meghna Mishra, Mr.Akshay

Makhija, Mr.Ashish Dholakia,

Mr.Abhimanya Mahajan, Ms.Mansi

Sharma, Ms.Nidhi Parashar,

Ms.Niyati Kohli & Mr.Varun Kumar

Tikmani, Advs. 

 

    versus

 

 THE INDIAN EXPRESS LTD. & ORS        ..... Defendants

    Through Mr.Ashwani Mata, Sr.Adv. & 

Mr.Dinesh Dwivedi, Sr.Adv. with

      Mr.Vijay Sondhi, Mr.Kunal Tandon,

      Mr.Kapil Arora & Ms.Nidhi, Advs.  

for D-3.

Dr.Saif Mahmood, Adv. for D-4.

Mr.Rajeeve Mehra, ASG with

Mr.Sachin Datta, CGSC & Mr.Vineet 

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Tayal, Adv. for D-6.  

 

CORAM:

HON'BLE MR.JUSTICE MANMOHAN SINGH 

 

MANMOHAN SINGH, J. 

 

1. The plaintiff has filed the abovementioned suit for permanent 

injunction and damages against six defendants, namely, (i) The Indian

Express Ltd. through Editor-in-Chief and Publisher, (ii) Mr.Maneesh

Chibber, Reporter, The Indian Express Ltd., (iii) Bennett, Coleman and

Company Ltd., The Managing Director & The Editor-in-Chief of ‘Times

Now’, (iv) Global Broadcast News (GBN) through Managing Director,

Editor-in-Chief of ‘CNN-IBN’ and Turner International through Managing

Director, (v) Ms.Intern through defendant No.2, and (vi) Union of India

through the Secretary, Ministry of Information and Broadcasting. 

2. The plaintiff has prayed for the relief of permanent injunction against

the defendant Nos.1 to 5, its associates, sister concerns, its agents,

representatives, correspondents, officers, employees and/or any other

person, entity, in print or electronic media or via internet or otherwise from

publishing, republishing, carrying out any further reports or articles or any

other matter telecasts or repeat telecasts or programs, or debates or any

discussion or reporting of any kind, directly or indirectly, pertaining to the

purported complaint dated 30

th

 November, 2013 and also prayed for a decree

of damages against the said defendant Nos.1 to 5, jointly and severally, at

least for an amount of `5 crores or for any higher amount and sought leave

of this Court in this regard. 

3. Admittedly, the plaintiff has been an eminent lawyer for 23 years

before being elevated to the position of a Judge of this Court. The plaintiff

then served as a Judge in the High Court of Punjab and Haryana at

Chandigarh and thereafter returned as a Judge of this Court, before being

elevated to the position of Chief Justice of the Bombay High Court. The

plaintiff was elevated to the Hon’ble Supreme Court of India on 18

 

December, 2009 and resigned on 19

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th

 December, 2012 to take over as the

Chairperson of the National Green Tribunal, a position that he presently

holds. The plaintiff has served as a Judge for over 23 years in his career.

4. The plaintiff is stated to have approached this Court as a consequence

to the breach of his fundamental and personal rights, due to the alleged

defamatory and malicious acts of defendant Nos.1 to 5.

5. Defendant No.5, details relating to whose identity are not disclosed

and who is now stated to have become a lawyer, is stated to have sent an

affidavit dated 30

th

 November, 2013 to the Hon’ble Chief Justice of India

making certain allegations against the plaintiff. Defendant No.5 claims to

have interned under the plaintiff in the Hon’ble Supreme Court of India,

however, the plaintiff on the basis of the information received regarding the

name of the defendant No.5 from defendant No.2, mentioned that defendant

No.5 was neither an intern nominated by the Supreme Court nor by the

plaintiff himself.  With a view to safeguarding her dignity and maintaining

her privacy, the identity of the said defendant Nos.5 at this stage, is being

kept confidential and this defendant is not being named and is being referred

to as the “intern”. However, for the sake of disclosure to this Court, the

plaintiff has filed the name of the defendant No.5 in a sealed envelope. 

th

6. Defendant No.1 is a prominent national daily having high circulation

both in India and abroad. The defendant No.2 is the author of the alleged

defamatory news items published by the defendant No.1 on 10

 January

2014, 11

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th

 January 2014 and 13

th

 January 2014. The defendant Nos.3 and 4

are broadcasters who telecast news and current affairs on their TV channels;

defendant No.3 is the owner of the TV channel “Times Now” while the

defendant No.4 is a partnership entity between Global Broadcast News and

Turner International which owns and operates the TV channel “CNN-IBN”.

7. The defendant No.6 is the Union of India through the Secretary,

Ministry of Information and Broadcasting, Government of India, which has

regulatory control over the print, electronic and internet media of this

country. The defendant No.6 has been arrayed as a necessary party to the

present suit in order to enable this Court to do comprehensive adjudication

and pass all effective direction(s), judgment(s) and decree(s). 

8. On 10

th

 January 2014, a news item written by defendant No.2 was

published in the defendant No.1 Newspaper. The said news item pertained to

an alleged complaint made by an individual (Defendant No.5) against a

retired Judge of the Hon’ble Supreme Court, with the headline “Another

intern alleges sexual harassment by another SC Judge”.

9. It is the case of the plaintiff that no attempt of any verification of the

allegations or the authenticity of the alleged complaint was undertaken by

said defendants before publishing the news item because, even as per the

news report, the defendant Nos.1 and 2, at the time of going to the Press, did

not have the alleged affidavit dated 30

th

 November 2013 in their possession.

The plaintiff states that the incidents that have been alleged by defendant 

th

No.5 did not take place and that the alleged complaint is baseless, fraudulent

and motivated.

10. At about 7.00 p.m., the same evening, on the show called ‘The News

Hour’, the channel of the defendant No.3 (Times Now) was conducting a

debate as to whether the name of the judge with regard to the complaint that

had been filed by an intern ought to be disclosed or not. The defendant No.3

also sought to publicize its programme, by publishing and asking the

following questions on its page at www.facebook.com as well as on the

channel itself, prior to the telecast to the said show.  The captions/tickers

running on the show were: 

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“If a sitting Supreme Court Judge has sexually harassed his

intern, should his name be made public?” 

 

“If Justice AK Ganguly's name was made public, should the

Judge's name be made public in this case as well?”

 

11. It is stated by the plaintiff that on the evening of 10

th

 January 2014,

the defendant No.2, called the plaintiff on his mobile and asked the plaintiff

for his comments on his news item published earlier that day. On the

plaintiff’s asking defendant No.2 as to why the defendant No.2 was asking

for the plaintiff’s comments on the said article, the defendant No.2 informed

the plaintiff that the said news item dated 10

th

 January 2014 pertained to him

and at that point, defendant No.2 also informed the plaintiff about the name

of the alleged complainant, being defendant No.5. 

12. The plaintiff is stated to have then requested defendant No.2 to refrain

from publishing the allegation as it may have serious consequences. 

However, defendant Nos.1 & 2 published a news item on 11

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th

 January 2014

with the headline:  

“Justice S Kumar… put his right arm around me, kissed me

on my left shoulder… I was shocked”.  

 

The plaintiff is stated to have later learnt that in fact, the said news item was 

published on the website of defendant No.1 at 11.20 p.m. on 10

 January,

2014 itself along with his photograph. 

13. It is averred that defendant No.3 conducted a public poll soliciting

opinions on whether its channel should disclose the name of the said retired

Supreme Court Judge. While the aforesaid show of defendant No.3 was

being watched live, defendant No.4 in a telecast on 10

th

 January 2014 at

around 9-10 p.m. in a show anchored by Mr.Rajdeep Sardesai, allegedly

with a view to steal a march over the defendant No.3’s TRPs and allegedly

in order to create sensation, proceeded to name the plaintiff as the Supreme

Court Judge against whom allegations of sexual misconduct had been made. 

14. In the meanwhile, the anchor and Editor-in-Chief of defendant No.3,

Mr.Arnab Goswami, in a follow-up debate aired later in the evening,

announced the name of the plaintiff and also repeatedly displayed the

photograph of the plaintiff during the show. The said reporting was done by

defendant No.3 without seeking any prior comments from the plaintiff. 

15. It is specifically alleged in the plaint that it is not known how the

defendant Nos.1 to 4 learnt the name of the plaintiff as on 10

th

 January 2014,

since the copy of the purported complaint, which was circulated by

defendant No.1 to the media, and a copy whereof has now come into the

possession of the plaintiff, has the names of the persons allegedly involved

being blackened out.  

th

16. It is the case of the plaintiff that he learnt from the news item dated

11

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th

 January 2014 published by the defendant Nos.1 & 2 that the purported

complaint is dated 30

th

 November, 2013 and that there is no explanation as

to why the same was not published for two months and why no verification

was undertaken by the said defendants or anyone else, from 30

 November,

2013, prior to the publication on 10

th

 January, 2014 and 11

th

 January, 2014,

especially when the institution sought to be maligned is the highest Court of

the country.  

It is also the case of the plaintiff that the reckless and irresponsible

action of the defendant Nos.1 to 4, seeking to increase their circulation and

TRPs at the cost of the reputation of the plaintiff and his public office have

caused grave and irreparable injury to the reputation of the plaintiff and

degraded the dignity of the Institution of Justice. It is stated that the

defendant No.5 caused the publication of her false complaint to the media

both print as well as electronic. The said acts of defendant Nos.1 to 5 are

stated to have lowered the esteem of the plaintiff in the estimation of the

public at large and his colleagues, staff, peers, and members of his social

circle.

17. It is further the case of the plaintiff that the aforesaid acts and

omissions are also violative of all the norms and canons of responsible

journalism.  Such conduct has been actuated by malice, against the plaintiff

in particular and generally against the justice dispensation system. The acts

of the said defendants as well as of defendant No.5 tantamount to blatant

scandal mongering and are per se defamatory as they seek to denigrate both

the plaintiff and harm his impeccable reputation in the public estimation.

The defendants have failed to abide by the minimum moral standards of 

th

ethics and there is a complete failure to comply with the etiquette and ethical

standards expected from them.

18. It is believed by the plaintiff that the purported affidavit dated 30

 

November, 2013 has been circulated by an officer of defendant No.6, the

Union of India, to the persons in the media.  A copy of the said affidavit, as

circulated to the media, found its way into the hands of a friend of the

plaintiff who handed over a copy of the same to the plaintiff on 11

 January

2014.  The name of the alleged complainant, being defendant No.5 and the

person against whom the allegations have been made were blackened out

and therefore, it was impossible for the plaintiff to either identify the name

of the complainant or ascertain the name of the person against whom the

alleged complaint was made. The plaintiff states that it is intriguing as to

how defendant Nos.1 to 4 discovered the name of the plaintiff.

19. It is further the case of the plaintiff that the defendants without any

sensitivity named the plaintiff and without having any regard for the dignity

and the privacy of the plaintiff and his family as well as the Institutions of

Justice with which the plaintiff’s name is associated, the defendants

withheld from disclosing the name of the defendant No.5 who has claimed

to have made such allegations against the plaintiff. The plaintiff’s right to

dignity, reputation, fair name and privacy are at par with the right of the

defendant No.5 and cannot be violated.  

20. The plaintiff has denied each and every allegation made in the alleged

affidavit/complaint dated 30

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th

 November, 2013 of defendant No.5. The said

allegations are stated to be false, scandalous and a product of a conspiracy

between defendant No.5 and other influential persons who have vested

interest in destabilizing the Institution of justice disposal. The plaintiff states 

th

th

that the allegations have been made up by defendant No.5 with the intention

of defaming the plaintiff and lowering his estimation in the eyes of those

who, directly or indirectly, become privy to the purported affidavit in which

the same are contained.  Defendant No.5 is guilty of vicious and gross libel.  

21. It is stated by the plaintiff that despite service of a legal notice dated

11

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 January, 2014 on defendant Nos.1 to 4, the said defendants have, to

further their commercial interests, lent credence to the false allegations in

the alleged affidavit, by telecasting various programmes wherein the said

allegations have been repeated.  The media has resorted to blatant scandal

mongering and continue to place defamatory content in the public domain. It

is the case of the plaintiff that once besmirched by an unfounded allegation

in a national newspaper and its telecast by electronic media, a reputation can

be damaged forever, especially if there is no opportunity to vindicate one’s

reputation. The repeated telecast of the unfound, false and manipulated

contents of the affidavit dated 30

th

 November, 2013 publicise the said false

allegations of the defendant No.5.  In this manner, the media also continues

to lower the plaintiff in the estimation of the society. 

22. The plaintiff has also stated that there are a large numbers of

newspapers in various languages in India. There are also several news and

general entertainment channels and online websites. Due to the advent of

internet and mass media, it is impossible for the plaintiff to determine as

well as to implead all the newspapers and TV channels as well as entities

reporting/carrying publishing defamatory material against the plaintiff. 

Defendant No.6 has regulatory control over the said entities/persons. The

plaintiff prays that an injunction order be passed against the said other

persons also who are not made party hereto, including defendant Nos.1 to 5.    

23. It is submitted that grave prejudice and irreparable injury will be

caused to the plaintiff if the defendants are not immediately restrained from

defamatory material against the plaintiff and that the balance of convenience

is in favour of the plaintiff and against the defendants and the plaintiff has a

strong prima facie case and there is every likelihood of the suit being

decreed in terms of the prayers made therein.

24. The plaintiff has also filed 13 affidavits of such persons who have

either interned or worked with the plaintiff from time to time.  In a sample

affidavit of Mr.Shobit Phutela son of Sh.Sant Parkash, who is a 5

 year

student at the National University of Juridical Sciences, Kolkata, it is

deposed by him that he had interned with the plaintiff from 17

 April, 2011

to 15

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 June, 2011 and during this period, he had assisted the plaintiff with

research, preparation of judgments, making of case notes and reading of case

briefs and also assisted the plaintiff with the preliminary organization of the

“International Seminar on Global Environment and Disaster Management:

Law and Society”.  The work involved inviting speakers, calling for papers,

printing of invitations, making phone calls, writing of speeches and

designing the brochure, etc.  The deponent has further deposed that during

the time of his internship, apart from him, there were other people, namely,

Ms.Deepti Jayakrishnan (Law Clerk), Ms.Nithya Anand (Intern who later

became the Law Clerk with the plaintiff) and Mr.Sudhanshu (Intern)

involved in the organization of the abovementioned conference.  He also

deposed that during the course of his internship, the complainant/defendant

No.5 also joined the office but worked only for 2-3 days.  She helped in the

preliminary organizational work for the aforementioned Conference, though

such help was short-lived.  He deposed that during the period of his 

th

th

internship, no such incident, as alleged by defendant No.5, took place or was

brought to anyone’s notice in the office, including him.  The reason quoted

by defendant No.5 for quitting her internship was her mother’s ailment and

that she had to leave because there was no one at home to take care of her

mother.  The deponent further deposed that after his internship got over, he

met the defendant No.5 in the College (Calcutta) and even at that time, she

did not inform him of the alleged incident.  On the last day of his internship,

the plaintiff invited him to attend the Conference at New Delhi on 22

 July24

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 July which he attended and did whatever organizational work that was

required of him.  He further deposed that he became aware of such an

allegation only after reading the newspaper report published in “The Indian

Express”.  This news came to him as a shock and he believes that such an

incident could not have transpired.  He also deposed that after reading the

newspaper, the image and reputation of the plaintiff has been tarnished in his

estimation and also in the estimation of the relatives, friends, and public at

large who have constantly been supportive and have reposed their faith in

the hard work and dedication of the plaintiff.     

25. The plaintiff has pressed for interim orders against the defendant

Nos.1 to 4 as per the prayers made in the interim application. 

26. Mr.Mukul Rohatgi, learned Senior counsel appearing on behalf of the

plaintiff along with other Senior Advocates appearing for the Bar have made

their submissions which can be outlined in the following manner: 

a) Mr.Rohatgi argued that the plaintiff has his hard earned reputation

and integrity before the legal fraternity as well as in the society at

large as he is still holding the responsible position as a presiding 

nd

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officer of the significant tribunal. It has been argued that the

defendant Nos.1 to 4 by their irresponsible acts cannot simply proceed

to injure the reputation of the plaintiff and damage the same by

creating an adverse publicity merely on the basis of the allegation

levelled against him by some intern/defendant No.5 against which the

enquiry is yet to be commenced and completed.  Mr.Rohatgi, learned

Senior counsel has argued that allowing the defendants to continue to

flash the name and photograph of the plaintiff in the print media or on

internet or on news channels and continue to connect him with such

allegations, creating adverse atmosphere in the public would

definitely damage his reputation in the society and such damage is

irreversible in nature which has to be prevented.  As per Mr.Rohatgi,

learned Senior counsel such damage is actionable and the same is

required to be prevented by way of prohibitory orders of the Court. 

b) As per Mr.Rohatgi, learned Senior counsel the freedom of press as

envisaged under Article 19(1) of the Constitution of India is not

absolute right and the same is subject to the reasonable restrictions

provided under Article 19(2) of the Constitution. It has been argued

by Mr.Rohatgi learned Senior counsel that excessive adverse publicity

beyond fair reporting not merely injures the reputation of the person

but also affects the fair administration of justice and in such cases, the

inherent power vests with the superior Courts including High Court to

interdict and pass interim orders including the postponement of the

publications as per the well settled law. 

c) Mr.Rohatgi, learned Senior counsel while drawing aid from the

previous submission has argued that the defendant No.5/intern had 

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sought remedy from the Supreme Court wherein the Hon’ble Supreme

Court has agreed to hear the matter on 14

th

 February, 2014 and also

appointed Mr.F.S.Nariman and Mr.K.K.Venugopal, learned Senior

Advocates to assist the Court as Amicus Curiae and even sought

Attorney General’s assistance in order to set up a mechanism to probe

allegations in view of the guidelines in Vishaka vs. State of

Rajasthan, (1997) 6 SCC 241 formed in Supreme Court. As per

Mr.Rohatgi, once the remedy has been preferred by the intern, the

defendant Nos.1 to 4 should not conduct the adverse publicity by

showing or projecting the plaintiff as culprit by prejudging him on the

basis of the mere allegation which will result in an adverse

atmosphere amongst the public and the likelihood of the plaintiff

getting fair trial and justice would be seriously prejudiced.  It has been

argued that in the instant case, there is real and tangible danger of the

interference with administration of justice. It has been argued that in

the absence of any fact finding or any cogent and clear back up

evidence, the media trial affecting the Court trial cannot be allowed

by giving juicy news in order to create sensation in the minds of the

public.  

d) Mr.Rohatgi, learned Senior counsel has read over the news articles

from the documents file including the headlines of the news articles

which contain the wordings or allegations  from the affidavit filed by

the Intern and the said headlines as per Mr.Rohatgi are aimed at

creating hype in the public mind and prejudicially affect the

reputation of the plaintiff and institution of justice. The said titles

include the titles: (i) “Justice S Kumar… put his right arm around me, 

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kissed me on my left shoulder… I was shocked”, (ii) “Sex taint on

another former S.C. Judge” and (iii) “Ex-Judge Claims Green Plot in

Sex Slur”, published in “Mail Today” on 15

th

 January, 2014.  As per

Mr.Rohatgi, learned Senior counsel such kind of news is not fair

journalism or responsible acts but is aimed at earning profits at the

cost of someone’s hard earned reputation. It has been argued that such

publications without any enquiry or verification with evidence

coupled with belated allegations should not be spread in the manner

done by the defendants No.1 to 4.  

e)  Mr.Rohatgi, learned Senior counsel has argued that the defendants

have played with the reputation of the plaintiff by deliberately

disclosing the name on the open channels and showing the

photographs time and again so that the confidence of the public in the

institution of justice as well as the reputation of the plaintiff in the

minds of the public is impaired. It has been argued that whatever

damage has been caused by the defendants is subject matter of the suit

but the defendants should be prevented from further repeating such

acts of causing such prejudice to the reputation of the plaintiff. 

f) Mr.Rohatgi has argued that the plaintiff has his right to maintain

dignity, right to live dignified life, right to preserve reputation and

they are all facets of right to life as provided under Article 21 and also

parts of basic human rights which are fundamental rights and legally

enforceable rights. It has been argued that the plaintiff can therefore

invoke the inherent jurisdiction of this Court by seeking injunction

orders against the publications of the articles which may prejudicially

affect the reputation of the plaintiff causing irreversible damage to 

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him. It has been argued that such invocation of the inherent

jurisdiction is available to the plaintiff by informing the Court that

there is real and imminent danger of the plaintiff not getting fair trial

or it may cause interference in the course of the justice by creating

undue pressure on account of the public pressure by way of

publication.  He has also questioned the issue of delay in filing the

complaint by defendant No.5/Intern after the gap of two and a half

years.   

27. Mr.Rohatgi, learned Senior counsel in order to substantiate his

submissions has relied upon the judgment passed by the Apex Court in the

case of Sahara India Real Estate Corporation Limited and Others vs.

Securities and Exchange Board of India & Another, (2012) 10 SCC 603

wherein the Supreme Court has laid down principles governing the passing

of the prior restraint order against the publication in some exceptional cases

and discussed in detailed the exceptions involved.

28.  Mr.Rohatgi, learned Senior counsel  also relied upon the judgment

passed by the Supreme Court in the case of Reliance Petrochemicals Ltd vs.

Proprietors Of Indian Express, (1988) 4 SCC 592 wherein the Supreme

Court had laid down the test governing the grant of the prohibitory orders

against the publication in the context of interference with the administration

of justice which is a real and imminent danger that there would be such

interference with the administration of the justice. 

29. Mr.Rohatgi, learned Senior counsel has further handed over several

other judgments cited at the bar but mainly summed up his case on the basis

of the submissions recorded above as well as the decisions quoted above. It

has been prayed that the plaintiff has no objection towards the defendant 

Nos.1 to 4 doing fair reporting of the happenings as facts but this Court

should pass interim orders restraining the defendant Nos.1 to 4 from

publicising the plaintiff’s name, picture with the allegations of the defendant

No.5 in the form of headlines which may create an impression that the

plaintiff has done something unwelcomed when the facts are still verifiable

or subjected to the scrutiny and the same are without any accompanying

evidence.  He has alleged that fair reporting is always permissible and the

defendants are entitled to inform the public the correct facts and

information, Court orders and events of Court proceedings as a news item. 

However, the media itself cannot form its own opinion and pre-judge the

matter and pronounce the judgment before the public without the matter is

examined and decided by the Court and particularly, without any back up by

cogent evidence, otherwise it would amount to what is called as “Media

Trial”.  It is submitted that the media even under the law is not entitled to

distort the facts for the purpose of juicy news.  If they do it, they are held

responsible to suffer damages.  He states that the present case is a fittest case

of this nature. 

30.  Per Contra, Mr.Dinesh Dwivedi and Mr.Ashwini Matta, learned

Senior counsel appearing on behalf of defendant No.3 have made their

submissions which can be outlined in the following manner: 

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(i) Learned Senior counsel argued that the freedom of the press which

is part of the freedom of the expression is hallmark of any

democracy and is part of the fundamental right under Article 19(1)

of the Constitution of India. It has been argued that the defendant

Nos.1 to 4 are merely publishing the write ups on the basis of the 

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affidavit supplied by the defendant No.5 and are not making any

such wild and reckless allegations as alleged by the plaintiff. 

(ii) Learned Senior counsel have argued that the defendants are

indulging in fair reporting. It has been argued that the defendant

Nos.1 to 4 have not expressed anything out of their own but the

defendants have merely reproduced the contents of the affidavit

written by the defendant No.5 in her complaint to the Supreme

Court.  It has been argued that the plaintiff is unnecessarily

alleging the defendant Nos.1 to 4 as guilty of irresponsible

journalism. It has been argued that the public debate or discussion

on public platform on issues of the public interests is part of free

and fair democracy. It has been argued that if the defendant Nos.1

to 4 have done public debate on television or written articles in the

newspapers describing the allegations of the defendant No.5

against the plaintiffs, the defendants did no wrong and have merely

expressed and exercised their freedom of press. 

(iii) Learned Senior counsel argued that there is no danger of the

plaintiff’s not getting fair trial or any obstructions in the

administration of justice and thus, the plaintiffs apprehensions are

totally out of the context and should not be acceded to by the

Court. 

(iv) Learned Senior counsel argued that the present suit for injunction

is not maintainable in as much as the publications have already

been made and thus the plaintiff cannot approach this Court

belatedly and even in future, the defendant No.3 would telecast its

programmes in fair reporting.  

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(v) Learned counsel  appearing for defendant No.4, upon instructions,

made the statement that without prejudice, his client, i.e. defendant

No.4 shall not conduct the telecast of the programme like earlier

telecasted on 10

th

 January, 2014 in respect of the plaintiff. 

By making all these submissions, learned counsel for the defendants 

have argued that this Court should not pass any injunction against the

defendants and allow them to file the written statements and replies to the

injunction application.

31. I have gone through the plaint, injunction application as well as the

documents filed therewith. I have also given careful consideration to the

submissions advanced by the learned counsel for the parties at the bar. I

shall now briefly discuss the plaintiff’s entitlement to the interim injunction

at this stage.

32. It is correct that freedom of expression in press and media is the part

of Article 19(1) of the Constitution of India where by all the citizens have a

right to express their view. However, the said right of the expression is also

not absolute but is subjected to the reasonable restrictions imposed by the

Parliament or State in the interests of the sovereignty and integrity of India,

the security of the State, friendly relations with foreign States, public order,

decency or morality or in relation to contempt of Court, defamation or

incitement to an offence. The said position is clear from the plain reading of

the Article 19(1) and (2) of the Constitution of India.

33. The Courts have time and again emphasized that the media and press

should not be unnecessarily restricted in their speech as the same may

amount to curtailment of expression of the ideas and free discussion in the

public on the basis of which the democratic country functions. The Courts 

should thus refrain from making any prior restraints on the publications in

order to curtail such freedom.

34. In Express Newspapers (Private) Ltd. & Anr. vs. The Union of India

& Ors., 1959 S.C.R. 12, the Supreme Court held that freedom of speech and

expression includes within its scope the freedom of the Press. The Supreme

Court referred to the earlier decisions in Romesh Thappar vs. State of

Madras, AIR 1950 SC 124 and Brij Bhushan vs. State of Delhi, AIR 1950

SC 129.  Romesh Thappar's case (supra) related to a ban on the entry and

circulation of Thappar's journal in the State of Madras under the provisions

of the Madras Maintenance of Public Order Act, 1949.  Patanjali Sastri, J.

speaking for the Court said in Romesh Thappar's case (supra) that "...there

can be no doubt that the freedom of speech and expression includes freedom

of propagation of ideas and that freedom is ensured by the freedom of

circulation. Liberty of circulation is as essential to that freedom as the

liberty of publication. Indeed, without circulation publication would be of

little value." In Brij Bhushan's case (supra), Patanjali Sastri, J. speaking for

the majority judgment again said that “...every free man has undoubted right

to lay what sentiments he pleases before the public; to forbid this, is to

destroy the freedom of the press."  Bhagwati, J. in the Express Newspaper’s

case (supra) speaking for the Court said that the freedom of speech and

expression includes freedom of propagation of ideas which freedom is

ensured by the freedom of circulation and that the liberty of the press is an

essential part of the right to freedom of speech and expression and that the

liberty of the press consists in allowing no previous restraint upon

publication. (Emphasis Supplied) 

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35. In another case of Express Newspapers Pvt. Ltd. & Ors vs. Union Of

India, AIR 1986 SC 872, the Supreme Court speaking through A.P. Sen, J.

emphasized that though the freedom of press is an inalienable right, but the

same is not absolute and is subject to Article 19 (2) as uncontrolled right to

speech leads to anarchism. The Supreme Court observed thus: 

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“I would only like to stress that the freedom of thought and

expression, and the freedom of the press are not only valuable

freedoms in themselves but are basic to a democratic form of

Government which proceeds on the theory that problems of the

Government can be solved by the free exchange of thought and

by public discussion of the various issues facing the nation. It is

necessary to emphasize and one must not forget that the vital

importance of freedom of speech and expression involves the

freedom to dissent to a free democracy like ours. Democracy

relies on the freedom of the press. It is the inalienable right of

everyone to comment freely upon any matter of public

importance. This right is one of the pillars of individual libertyfreedom

 

of speech, which our Court has always unfailingly

guarded. I wish to add that however precious and cherished the

freedom of speech is under Art.19(1)(a), this freedom is not

absolute and unlimited at all times and under all circumstances

but is subject to the restrictions contained in Art. 19(2). That

must be so because unrestricted freedom of speech and

expression which includes the freedom of the press and is

wholly free from restraints, amounts to uncontrolled licence

which would lead to disorder and anarchy and it would be

hazardous to ignore the vital importance of our social and

national interest in public order and security of the State.”

(Emphasis Supplied)

 

36. As it seen above, the right to press and its freedom to express the

ideas in public has always been  the integral part of healthy democracy and

the prior restraint on the publication was considered to be acceptable under

the earlier line of authorities. The Courts have always indicated that the fine 

balance is required to made so that the said liberty of press should not be

uncontrolled or regulated by laws including the laws relating to public order,

contempt etc and the same is subject to reasonable restrictions as per the

Article 19 (2) of the Constitution of India.

37. The position of law as to no prior restraint on the publication has been

revisited by the Supreme Court in a number of cases including the case of 

Reliance Petrochemicals Ltd vs. Proprietors Of Indian Express, AIR 1989

SC 190 wherein Sabyasachi Mukherjee, J. speaking for the Supreme Court

observed that the Court can pass interim orders restraining the publication if

the Court finds that there exists a real and imminent danger that the

continuance of the publication would result in interference with the

administration of justice. As per Mukherjee, J., it was observed thus: 

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“Mr.Baig drew our attention to page 282 of the said report

where Justice Frankfurter had observed that free speech was not

so absolute or irrational a conception as to imply paralysis of

the means for effective protection of all the freedoms secured

by the Bill of Rights. The administration of justice by an

impartial judiciary has been basic to the conception of freedom

ever since Magna Carta. Justice Frankfurter further reiterated

that the dependence of society upon an unswered judiciary is

such a common place in the history of freedom that the means

by which it is maintained are too frequently taken for granted

without heed to the conditions which alone make it possible.

(Emphasis supplied). The role of Courts of justice in our society

has been the theme of statesmen and historians and constitution

makers, and best illustrated in the Massachusetts Declaration of

Rights as the right of every citizen to be tried by Judge as free,

impartial and independent as the lot of humanity will admit. 

Justice Frankfurter dissenting in his Judgment with whom

Justice Stone, Justice Roberts and Justice Byrnes agreed,

reiterated at page 284 of the report that the Constitution is an 

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instrument of Government and is not conceived as a doctrinaire

document, nor was the Bill of Rights intended as a collection of

popular slogans. It is well to remember that Justice Frankfurter

recognised that we cannot read into the 14

th

 Amendment the

freedom of speech and of the Press protected by the 1st

Amendment and at the same time leave out the age old means

employed by States for securing the calm course of justice. He

emphasised that the 14

th

 Amendment does not forbid a State to

continue the historic process of prohibiting expressions

calculated to subvert a specific exercise of judicial power. So to

assure the impartial accomplishment of justice is not an

abridgement of freedom of speech or Press, as these phases of

liberty have heretobefore been conceived even by the stoutest

libertarians. Actually, these liberties themselves depend "upon

an untrammelled judiciary whose passions are not even

unconsciously aroused and whose minds are not distorted by

extrajudicial considerations." 

“The test of imminent and present danger as the basis of Justice

Holmes's ideas has been referred to by this Court in P.N. Duda

v. P. Shiv Shanker & Ors., AIR 1988 SC 1208. This question

again cropped up in John D Pennekamp v. Slate of Florida,

[1945] 90 L.Ed. 331 and Justice Frankfurter reiterated that the

'clear and present danger' conception was never used by

Mr.Justice Holmes to express a technical legal doctrine or to

convey a formula for adjudicating cases. It was a literary phrase

not to be distorted by being taken from its context. He reiterated

that the judiciary could not function properly if what the Press

does is reasonably calculated to disturb the judicial judgment in

its duty and capacity to act solely on the basis of what is before

the Court. A judiciary is not independent unless Courts of

justice are enabled to administer law by absence of pressure

from without, whether exerted through the blandishments of

reward or the mance of disfavour. A free Press is vital to a

democratic society for its freedom gives it power.” 

38. The Supreme Court on facts of the case of Reliance Petrochemicals

(supra) proceeded to apply the test of real and imminent danger and 

proceeded to vacate the injunction due to the reason that as per the Court no

such real and imminent danger exists due to the change of circumstances.

This is evident from the reading the concluding paragraphs of the judgment

wherein it was observed thus: 

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“In the peculiar facts of this case now that the subscription to

debentures has closed and, indeed, the debentures have been

over-subscribed, we are inclined to think that there is no

such imminent danger of the subscription being withdrawn

before the allotment and as to make the issue vulnerable by

any publication of article. On a balance of convenience, we

are of the opinion that continuance of injunction is no longer

necessary. In this peculiar situation our task has been difficult

and complex. The task of a modern Judge, as has been said, is

increasingly becoming complex. Furthermore, the lot of a

democratic Judge is heavier and thus nobler. We cannot escape

the burden of individual responsibilities in a particular situation

in view of the peculiar facts and circumstances of the case.

There is no escape in absolute. Having regard however, to

different aspects of law and the ratio of the several decisions, by

which though we are not bound, except the decisions of this

Court referred to hereinbefore, about which we have mentioned,

there is no decision dealing with this particular problem, we are

of the opinion that as the Issue is not going to affect the ,general

public or public life nor any injury is involved, it would be

proper and legal, on an appraisal of the balance of convenience

between the risk which will be caused by the publication of the

article and the damage to the fundamental right of freedom of

knowledge of the people concerned and the obligation of Press

to keep people informed, that the injunction should not continue

any further.”     (Emphasis Supplied) 

39. From the reading of the aforenoted observations of the Supreme Court

in Reliance Petrochemicals’ case (supra), it is clear that the Supreme Court

has applied the test of the real and imminent danger in order to infer as to 

whether the proposed publication would lead to interference in the course of

justice for the purposes of grant and non grant of the interim injunction or

prior restraint against the publication.

40. Recently, the Supreme Court again in the case of Sahara India (supra)

reconsidered the position in law relating to passing of the prior restraint

order against the proposed publication and has proceeded to lay down the

guidelines as to under what circumstances the prior restraint order can be

passed, what are factors, which fall for consideration prior to the passing of

such interim order and other aspects necessarily required to be satisfied for

the grant of the interim order or postponement of the publication.  

41. In Sahara India’s case (supra), the Supreme Court has made certain

significant findings and it is pertinent to discuss the judgment of Sahara

India (supra) in detail due to the reason that it has been relied upon heavily

by the plaintiff and it is as per the tests laid down in Sahara India (Supra)

that  the case of the parties is required to be tested by this Court. Firstly, in

Sahara India (supra), the Supreme Court has held that the prior restraint of

publication is not constitutionally impermissible. It has been observed thus: 

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“At this stage, we wish to clarify that the reliance on the above

judgments is only to show that “prior restraint” per se has not

been rejected as constitutionally impermissible. At this

stage, we may point out that in the present IAs we are

dealing with the concept of “prior restraint” per se and not

with cases of misuse of powers of pre- censorship which

were corrected by the Courts [see Binod Rao v. Minocher

Rustom Masani reported in 78 Bom LR 125 and C. Vaidya v.

D’Penha decided by Gujarat High Court in Sp. CA 141 of 1976

on 22.03.1976 (unreported)]”   (Emphasis Supplied) 

42. Thereafter, the Supreme Court in Sahara India (supra) proceeded to

quote the judgment of the Reliance Petrochemicals (supra) and proceeded

to observe that the prior restraint against publication is vested in the form of

inherent powers of the superior Courts including High Court under the

provisions of Section 151 of the Code of Civil Procedure wherein the Court

can proceed to pass such restraint orders if the administration of justice so

warrants approving the judgment of Naresh Shridhar Mirajkar v. State of

Maharashtra, AIR 1967 SC 1. It has also been held by the Supreme Court

that the right to open justice which is free and unprejudiced is a basic right

that has to be balanced vis-a-vis the right to press and expression of ideas

which is the facet of the right to speech and expression.

43. In the case of Surya Prakash Khatri vs. Madhu Trehan, 2001 (92)

DLT 665, the Full Bench of this Court in para 23 of the judgment has held

as under: 

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23.  It is thus needless to emphasise that a free and healthy

press is indispensable to the functioning of a true democracy. In

a democratic set up there has to be an active and intelligent

participation of the people in all spheres and affairs of their

community as well as the State. It is their right to be kept

informed about current political, social, economic and cultural

life as well as the burning topics and important issues of the day

in order to enable them to consider and form broad opinion

about the same and the way in which they are being managed,

tackled and administered by the Government and its

functionaries. To achieve this objective the people need a clear

and truthful account of events, so that they may form their own

opinion and offer their own comments and viewpoints on such

matters and issues and select their further course of action. The

primary function, therefore, of the press is to provide

comprehensive and objective information of all aspects of the

country's political, social, economic and cultural life. It has an 

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educative and mobilising role to play. It plays an important role

in moulding public opinion and can be an instrument of social

change. It may be pointed out here that Mahatma Gandhi in his

autobiography has stated that one of the objectives of the

newspaper is to understand the proper feelings of the people

and give expression to it; another is to arouse among the people

certain desirable sentiments; and the third is to fearlessly

express popular defects. It therefore turns out that the press

should have the right to present anything which it thinks fit for

publication. But it has to be remembered that this freedom of

press is not absolute, unlimited and unfettered at all times and

in all circumstances as giving an unrestricted freedom of speech

and expression would amount to an uncontrolled license. If it

were wholly free even from reasonable restraints it would lead

to disorder and anarchy. The freedom is not to be

misunderstood as to be a press free to disregard its duty to be

responsible. In fact, the element of responsibility must be

present in the conscience of the journalists. In an organized

society, the rights of the press have to be recognised with its

duties and responsibilities towards the society. Public order,

decency, morality and such other things must be safeguarded.

The protective cover of press freedom must not be thrown open

for wrong doings. If a newspaper publishes what is improper,

mischievously false or illegal and abuses its liberty it must be

punished by Court of law. (See. In re Harijai Singh and another,

AIR 1997 SC 73).  The editor of a newspaper or a journal has a

greater responsibility to guard against untruthful news and

publications for the simple reasons that his utterances have a far

greater circulation and impact than the utterances of an

individual and by reason of their appearing in print, they are

likely to be believed by the ignorant. That being so, certain

restrictions are essential even for preservation of the freedom of

the press itself. To quote from the report of Mons Lopez to the

Economic and Social Council of the United Nations" If it is true

that human progress is impossible without freedom, then it is no

less true that ordinary human progress is impossible without a

measure of regulation and discipline. It is the duty of a true and

responsible journalist to strive to inform the people with 

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accurate and impartial presentation of news and their views

after dispassionate evaluation of the facts and information

received by them and to be published as a news item. The

presentation of the news should be truthful, objective and

comprehensive without any false and distorted expression.” 

44. Thus, the principle of open justice is not absolute. There can be

exceptions in the interest of administration of justice. In Mirajkar’s case

(supra), the High Court ordered that the deposition of the defence witness

should not be reported in the newspapers. This order of the High Court was

challenged in the Supreme Court under Article 32 of the Constitution of

India. The Supreme  Court held that apart from Section 151 of the Code of

Civil Procedure, the High Court had the inherent power to restrain the press

from reporting where the administration of justice so demanded. The Court

held vide para 30 that evidence of the witness need not receive excessive

publicity as fear of such publicity may prevent the witness from speaking

the truth. That, such orders prohibiting publication for a temporary period

during the course of trial are permissible under the inherent powers of the

Court whenever the Court is satisfied that interest of justice so requires. As

to whether such a temporary prohibition of publication of Court proceedings

in the media under the inherent powers of the Court can be said to offend the

rights under Article 19(1)(a)  [which includes freedom of the press to make

such publication], this Court held that an order of a Court passed to protect

the interest of justice and the administration of justice could not be treated as

violative of Article 19(1)(a) of  the Constitution of India. 

45. “The judgments in Reliance Petrochemicals Ltd. and Mirajkar

were delivered in civil cases.  However, in Mirajkar, this Court held

that all Courts which have inherent powers, i.e., the Supreme Court, the 

High Courts and Civil Courts can issue prior restraint orders or

proceedings, prohibitory orders in exceptional circumstances

temporarily prohibiting publications of Court proceedings to be made

in the media and that such powers do not violate Article 19(1)(a).

Further, it is important to note, that, one of the Heads on which Article

19(1)(a) rights can be restricted is in relation to “contempt of Court” under

Article 19(2). Article 19(2) preserves common law of contempt as an

“existing law”. In fact, the Contempt of Courts Act, 1971 embodies the

common law of contempt. At this stage, it is suffice to state that the

Constitution framers were fully aware of the Institution of Contempt under

the common law which they have preserved as “existing law” under Article

19(2) read with Article 129 and Article 215 of Constitution. The reason

being that contempt is an offence sui generis. The Constitution framers

were aware that the law of contempt is only one of the ways in which

administration of justice is protected, preserved and furthered. That, it

is an important adjunct to the criminal process and provides a sanction.

Other civil Courts have the power under Section 151 of Code of Civil

Procedure to pass orders prohibiting publication of Court proceedings.

In Mirajkar, this Court referred to the principles governing Courts of

Record under Article 215 [see para 60]. It was held that the High Court

is a Superior Court of Record and that under Article 215 it has all the

powers of such a Court including the power to punish contempt of itself.

At this stage, the word “including” in Article 129/Article 215 is to be

noted. It may be noted that each of the Articles is in two parts. The first

part declares that the Supreme Court or the High Court “shall be a

Court of Record and shall have all the powers of such a Court”. The 

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second part says “includes the powers to punish for contempt”. These

Articles save the pre-existing powers of the Courts as Courts of record

and that the power includes the power to punish for contempt [see Delhi

Judicial Service Association vs. State of Gujarat [(1991) 4 SCC 406] and

Supreme Court Bar Association vs. Union of India [(1998) 4 SCC 409].

As such, a declaration has been made in the Constitution that the said

powers cannot be taken away by any law made by the Parliament except to

the limited extent mentioned in Article 142(2) in the matter of investigation

or punishment of any contempt of itself. If one reads Article 19(2) which

refers to law in relation to Contempt of Court with the first part of

Article 129 and Article 215, it becomes clear that the power is conferred

on the High Court and the Supreme Court to see that “the

administration of justice is not perverted, prejudiced, obstructed or

interfered with”.       (Emphasis Supplied)

46. From the mere reading of the excerpts from the judgment of Sahara

India (supra), it is can be said that the High Court has ample powers under

its inherent powers to restraint the publication in media in the event it arrives

at the finding that the said publication may result in interference with the

administration of justice or would be against the principle of fair trial or

open justice. Although the aforenoted observations seem to suggest that the

Court can restrain the publication of the news relating to Court proceedings

or postpone the same in order obtain the fair trial. The later part of the

judgement in Sahara India (supra) suggest that the order of the prior

restraint is a preventive order and the said order may proceed to restrain any

publication which may cause obstruction of the justice which include

intrusion in right to have open justice unbiased by any public opinion 

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expressed in publication. Thus, the interference with the course of justice as

a term is not merely confined to the restraint order only on the publications

relating to pending Court proceedings. But also, any publication which

would give excessive adverse publicity to the accused or alleged victim

which may likely to hamper the fair trial in future is also covered within the

ambit and sweep of the enquiry of the Court as to what may constitute the

interference with the course of the justice. This can be seen if one reads the

following paragraphs of the judgment in Sahara India (Supra) wherein it

has been observed thus: 

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“To see that the administration of justice is not prejudiced

or perverted clearly includes power of the Supreme

Court/High Court to prohibit temporarily, statements being

made in the media which would prejudice or obstruct or

interfere with the administration of justice in a given case

pending in the Supreme Court or the High Court or even in 

the subordinate Courts. In view of the judgment of this Court

in A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such

statements which could be prohibited temporarily would

include statements in the media which would prejudice the

right to a fair trial of a suspect or accused under Article 21

from the time when the criminal proceedings in a

subordinate Court are imminent or where suspect is

arrested.” (Emphasis supplied)

 

“Presumption of innocence is held to be a human right. [See :

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra

(2005) 5 SCC 294]. If in a given case the appropriate Court

finds infringement of such presumption by excessive

prejudicial publicity by the newspapers (in general), then

under inherent powers, the Courts of Record suo motu or

on being approached or on report being filed before it by

subordinate Court can under its inherent powers under

Article 129 or Article 215 pass orders of postponement of

publication for a limited period if the applicant is able to 

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demonstrate substantial risk of prejudice to the pending

trial and provided he is able to displace the presumption of

open Justice and to that extent the burden will be on the

applicant who seeks such postponement of offending

publication.” (Emphasis Supplied) 

 

47. Thereafter the Supreme Court in Sahara India (supra) further 

proceeded to lay down that the applicant who seeks the interim injunction or

postponement of the publication must discharge the onus as to show that the

publication would seriously impair his right to open justice. It has been

observed that the temporary restraint orders on publication are necessarily

required to be passed for a limited period. This has been observed by

Supreme Court in the following words: 

“The very object behind empowering the Courts to devise such

methods is to see that the administration of justice is not

perverted, prejudiced, obstructed or interfered with. At the same

time, there is a presumption of Open Justice under the common

law. Therefore, Courts have evolved mechanisms such as

postponement of publicity to balance presumption of

innocence, which is now recognized as a human right in

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra

(supra) vis-a-vis presumption of Open Justice. Such an order

of postponement has to be passed only when other alternative

measures such as change of venue or postponement of trial are

not available. In passing such orders of postponement,

Courts have to keep in mind the principle of proportionality

and the test of necessity. The applicant who seeks order of

postponement of publicity must displace the presumption of

Open Justice and only in such cases the higher Courts shall

pass the orders of postponement under Article 129/Article

215 of the Constitution.” (Emphasis supplied) 

 

48. The Supreme Court in Sahara India (supra) proceeded to observe that 

the superior Courts would assume jurisdiction not merely in cases, where 

there is an actual contempt committed by the media but also order of

restraint to prevent the future committal of the contempt. It has been

observed by the Supreme Court that in an exceptional cases where the

publicity is so excessive that in a given case when it appears to the fair

reporting but the prejudice is such that may result in fair trial, then the Court

has no option short of the prevention of the publication even if some kind of

fairness is ascribed to the publication. In the words of the Supreme Court, it

has been observed thus: 

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 32 of 42 

 

“As stated above, sometimes, fair and accurate reporting of

the trial (say a murder trial) would nonetheless give rise to

substantial risk of prejudice not in the pending trial but in

the later or connected trials. In such cases, there is no other

practical means short of postponement orders that is

capable of avoiding such risk of prejudice to the later or

connected trials. Thus, postponement order not only

safeguards fairness of the later or connected trials, it 

prevents possible contempt by the Media.” (Emphasis

Supplied) 

 

49. Upon fair reading of the aforenoted paragraph of the Sahara India 

(supra), it is clear that it is the question of degree of prejudice and its nexus

with fetching the fair justice or open justice which is a potent factor which is

required to be examined and tested by the Courts at the time of passing of

the injunction restraining or postponing the publication. The line between

fairness and unfairness is sometimes blurred but if the same is likely to

prejudice the accused and project him as culprit which may cause

irreversible damage to a person, the Court can step in and assume 

jurisdiction for future prevention of such damage so that the administration

of the justice is not impaired.

50. It is seen that the Supreme Court has given only one instance of

murder trial where such excessive adverse publicity even if be it fair may

compel the Court to interdict and pass postponement order. It is only one

such example where the degree of prejudice is so higher and the same may

affect the fair trial and impact in administration of justice. Similar can be

other cases where such degree of the prejudice exists due to the excessive

publicity which may put the party in such an irreversible position by

creating a public opinion which may create impediments in getting fair trial

or interferes in the administration of the justice due to dominant adverse

public opinion. Prima facie, I find that such degree of 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. The said confidence reinforces the faith in the minds of the public

about the fairness and credibility attached the institution of the justice. If

some allegations are casted against any member of the Judiciary of the Apex

Court current or retired relating to his service in his office as a judge of the

Apex Court, the publicity relating to the same has to be handled with care

and caution as the excessive adverse publicity relating to the said instance

may not merely because a damage to the person himself (as it jeopardizes

his repute which he has earned for several years as serving officer of the

institute) and put question mark on the integrity of the person, but it also 

could damage the public good due to the reason that the confidence of the

public reposed in higher judiciary muchless the Apex body as a last hope for

getting justice is seriously prejudiced. The said loss of faith in turn results in 

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bad repute for the person and the institution of justice as a whole. Thus, the

degree of prejudice in such case not merely creates an adverse public

opinion but also casts doubts on the institution as a whole. 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. 

51. The Supreme Court in the case of Sahara India (supra) also

proceeded to observe that the postponement of publication orders can be

passed by the Court after seeing the publication and no general orders

restraining future publications can be made but the Court will adopt a

judicious approach while making the orders of postponements after the

considering the material available on record. In the words of the Supreme

Court, it was observed thus: 

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“The principle underlying postponement orders is that it

prevents possible contempt. Of course, before passing

postponement orders, Courts should look at the content of

the offending publication (as alleged) and its effect. Such

postponement orders operate on actual publication. Such orders

direct postponement of the publication for a limited period.

Thus, if one reads Article 19(2), Article 129/ Article 215 and

Article 142(2), it is clear that Courts of Record “have all the

powers including power to punish” which means that Courts of

Record have the power to postpone publicity in appropriate

cases as a preventive measure without disturbing its content.

Such measures protect the Media from getting prosecuted or

punished for committing contempt and at the same time such

neutralizing devices or techniques evolved by the Courts

effectuate a balance between conflicting public interests. It is

well settled that precedents of this Court under Article 141 and

the Comparative Constitutional law helps Courts not only to 

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understand the provisions of the Indian Constitution it also

helps the Constitutional Courts to evolve principles which as

stated by Ronald Dworkin are propositions describing rights [in

terms of its content and contours] (See “Taking Rights

Seriously” by Ronald Dworkin, 5th Reprint 2010). The

postponement orders is, as stated above, a neutralizing device

evolved by the Courts to balance interests of equal weightage,

viz., freedom of expression vis-a-vis freedom of trial, in the

context of the law of contempt”  (Emphasis Supplied) 

 

52. It has been further observed by the Supreme Court that the Court 

while seeking to pass postponement order should examine the content of the

publication on case to case to basis in order to form an opinion. It was

observed thus: 

“What constitutes an offending publication would depend

on the decision of the Court on case to case basis. Hence, 

guidelines on reporting cannot be framed across the Board.

The shadow of “law of contempt” hangs over our jurisprudence.

This Court is duty bound to clear that shadow under Article

141. The phrase “in relation to contempt of Court” under

Article 19(2) does not in the least describe the true nature of the

offence which consists in interfering with administration of

justice; in impending and perverting the course of justice. That

is all which is done by this judgment”  (Emphasis Supplied)

 

“We do not wish to enumerate categories of                   

publication amounting to contempt as the Court(s) has to

examine the content and the context on case to case basis”  

(Emphasis Supplied)

 

53. In the present case, it is an admitted position that the alleged incident

is of May, 2011 and that the complaint was filed before Hon’ble Chief

Justice of India in November, 2013.  The allegations made in the complaint

have neither been examined or tested in any Court of law nor have they  

been proved.  No civil or criminal case has been filed by defendant No.5 nor

any cogent evidence has been produced along with the complaint.

54. It is also not clear from the material placed on the record, how the TV

channels/media have received the copy of the complaint, name of the

plaintiff and his photograph and who has provided all such details.  These

certainly are serious matters which are required to be inquired at the

appropriate time in view of the nature of the present case.  

55. It is also true that the freedom of press cannot be extended beyond

reporting of facts.  The plaintiff admittedly has an illustrious career spending

over 43 years and has earned name in bar and bench and has an impeccable

reputation and is well-known for his integrity and high moral values.  He has

a reputation in India as well as outside India.  In his career over 23 years as a

Judge, the plaintiff has dealt with many important cases and has always

protected and preserved the interests of justice.

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  

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 36 of 42 

 

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.

59. It is thus a question of fact which has to be examined on case to case

basis as to what constitutes the offending publication which may result in

future obstruction of justice after examining the content of the publication

and its likely effect on the public. Applying the said test to the instant case,

It can be seen that there are some allegations against the plaintiff about his

alleged involvement in the sexual harassment against which the remedial

measures have been taken by the defendant No.5 by approaching the

Supreme Court to set up a mechanism in view of guidelines set out in

Vishaka’s case (supra). It is further pertinent to mention that the occurrence

of the alleged incident is stated to be 2 and a  half year prior to the filing of

the said complaint.  It is the grievance of the plaintiff as per the material

available on record wherein on the basis of mere stray allegation verification

of which is required to be tested in the Court, the defendants are excessively

publicising the same by the titles which connects the plaintiff with that of

the said allegations alongside the photographs and his name which creates 

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an impression as if the plaintiff is actually involved in the incident in order

to create adverse public opinion. The said titles include document filed at

page No.6 in the documents file which reads that “Justice S Kumar….. put

his right arm around me, kissed on my left shoulder…. I was shocked” in the

beginning of the national daily newspaper along with the photograph and the

name prominently written on the same in order to connect plaintiff with such

imputations which are still at the stage of mere allegations levelled at the

belated stage. Similar news articles are pointed in the documents filed at

page No.8 and 10 which use the expressions like “sex taint on another SC

judge” and “Supreme Court urged to probe charge against former Judge”. I

have examined the contents of the said publications at the relevant pages

No.6, 8 and 10. I have already observed that continuous adverse publicity of

the persons who are seen from the eyes of public confidence and faith is

destructive of their reputation as well as the public good in the form of the

loss of confidence in the institution itself. It may also result in creating an

atmosphere in the form of public opinion wherein a person may not be able

to put forward his defence properly and his likelihood of getting fair trial

would be seriously impaired. Prima facie, I find that the publications at page

No.6, 8 and 10 connect the plaintiff with the such allegations in the manner

which creates a trial by media kind of situation by creating a sensation

amongst the public by highlighting and underscoring mere allegations on the

front pages of daily routine news and thus the same or similar nature of

publications are required to be postponed.

60. It has been observed by the Supreme Court in Sahara India (supra)

that the order by the Court may include the direction not to disclose the 

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 38 of 42 

 

identity of the victim, witness of complaint or of alike nature. The Court

observed thus: 

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 39 of 42 

 

“In the light of the law enunciated hereinabove, anyone, be

he an accused or an aggrieved person, who genuinely

apprehends on the basis of the content of the publication

and its effect, an infringement of his/ her rights under

Article 21 to a fair trial and all that it comprehends, would

be entitled to approach an appropriate writ Court and seek

an order of postponement of the offending publication/

broadcast or postponement of reporting of certain phases of

the trial (including identity of the victim or the witness or

the complainant), and that the Court may grant such

preventive relief, on a balancing of the right to a fair trial

and Article 19(1)(a) rights, bearing in mind the

abovementioned principles of necessity and proportionality

and keeping in mind that such orders of postponement

should be for short duration and should be applied only in

cases of real and substantial risk of prejudice to the proper

administration of justice or to the fairness of trial. Such

neutralizing device (balancing test) would not be an

unreasonable restriction and on the contrary would fall within

the proper constitutional framework.”  (Emphasis supplied) 

 

61. In view of the observations of the Supreme Court, it is clear that the 

order in the cases preventing the publication may include directions not to

disclose the identity of the person or postpone the publication amongst other

directions. In the instant case, the identity of the plaintiff is already disclosed

prior to approaching this Court, however, the plaintiff states that the

photograph of the plaintiff is repeated shown in the national dailies and

televised news on day to day basis with an attempt to create an adverse

public image. Prima facie I find that besides postponing the publications, the

order or directions restraining the defendant not to publish the photograph of

the plaintiff time and again till the time any fact finding is made by the 

relevant authorities is also necessary so that the adverse publicity against

him can be avoided.

62. I have already examined in the preceding paragraph of this order the

argument that even if some amount of fairness is attached to the publication,

still the Court can proceed to prevent the same on the basis of the excessive

prejudice. Suffice it to say, no conclusive finding as to fairness or unfairness

can be arrived at this juncture. Upon the fair reading of material available on

record, it prima facie appears that the same can prejudicially affect the

public mind and there is real and tangible risk of the plaintiff in not getting

fair trial or open justice as contemplated by the common law as per the

dictum laid down by the Supreme Court of India in Sahara India (supra).

63. In view of the aforementioned discussion, I find that the plaintiff has

been able to make out a strong prima facie case on the basis of the disclosure

of the material available on record especially copies of newspapers at page

Nos.6, 8, 10 of the documents and the CDs which clearly show that the

defendants have published the write ups and telecasted by highlighting the

allegations on the front page in order to create sensation amongst public and

made it apparent by creating the impression that the plaintiff in all

probability is involved in such incident. The balance of the convenience is

also in favour of the plaintiff as the degree of the prejudice is far more

excessive than that of the defendants. The irreparable loss shall ensue to the

plaintiff at this stage and not to the defendants if such publications and

telecast of TV news of such nature on similar lines are not postponed. The

interim order is also passed against  any other person, entity, in print or

electronic media or internet in view of the settled law in the case of ESPN

Sofftware India Private Limited vs. M/s Tudu Enterprises and Others in 

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 40 of 42 

 

CS(OS) No.384/2011 dated 18

I.A. No.723/2014 in CS(OS) No.102/2014                                                                           Page 41 of 42 

 

th

 February, 2011 and Indian Performing

Right Society Ltd. Vs. Badal Dhar Chowdhry and Ors., 2010 (43) PTC 332

(Del.).

64. Accordingly, the defendants, their agents, assigns or any of them

acting on their behalf and/or any other person, entity, in print or electronic

media or internet are: 

a) Restrained from further publishing the write ups as mentioned in page

Nos.6, 7, 10 of the documents file or publishing any article or write up

and telecast which highlights the allegations against the plaintiff in the

form of headlines connecting or associating plaintiff with those

allegations, particularly, without disclosing in the headlines of article

that they are mere allegations against the plaintiff or any other similar

nature of articles, write up and telecast.  

b) The directions made in para (a) restrains the defendants from

publication either in print media or in electronic form or in any

manner publishing the said news in televised form. The defendants

shall delete the offending content as mentioned in para (a) from

internet or other electronic media and shall take necessary steps

within 24 hours from today. 

c) The defendants are further restrained from publishing the photographs

of the plaintiff either in print media or electronic media or Internet or

on TV channels which may suggest connection of the plaintiff with

the said allegations made by defendant No.5 and remove his

photographs from internet or all other electronic media as well as

upload defamatory articles.  

65. The said interim directions as mentioned in paras (a) to (c) of

postponement of publications shall remain in force till the next of date of

hearing which is a temporary measure as per Sahara India (supra) and the

same are subject to further monitoring by this Court from time to time.

66. The observations made in this order are prima facie in nature and will

not preclude the defendants to report the Court cases and happenings as facts

which are covered ambit of fair reporting on the basis of true, correct and

verified information.

67. Compliance of Order 39 Rule 3 CPC be made by the plaintiff within

one week.

68. Copies of this order be given dasti under the signatures of the Court

Master to the parties for the purpose of immediate compliance.

69. List this matter on 24

 

 

JANUARY 16, 2014 

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th

 February, 2014 the date already fixed. 

(MANMOHAN SINGH)

JUDGE 

 

Vineet Kumar
on 17 January 2014
Published in Civil Law
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