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The Censor Bench-Arun Jaitley

Judicial gag orders are as abhorrent as executive restraints on the media
 
Some interim orders issued by the courts have restrained publication or comment on certain matters of public importance. Orders imposing judicial censorship on the media have been extremely rare. Except in the rarest of rare cases, judicial “gag orders” are as abhorrent as executive restraints on the media.

The changed situation calls for a comment on these judicial orders and the impossibility of their enforcement. The character of the media has significantly changed. The agenda is now set by the electronic media, which has redefined the word “news”. News is what camera can capture. What camera cannot capture is relatively irrelevant to the electronic media. Electronic media, thus, necessarily involves exaggeration and sensationalism styled as “breaking news”. The digital media has space for news, opinion, gossip and even irresponsible comments. The print media is facing a challenge as the publisher of delayed news. It cannot merely repeat what others have seen the previous evening. The natural consequence is to either publish a story behind the news, opinion, comment, or break exclusive stories.

In the context of both digital and electronic media, enforcement of censorship, whether executive or judicial, is difficult, if not impossible. Satellite communication is so overpowering that censorship or restraint is extremely difficult to implement. Thus, if there is a restraint order that is enforceable, it can at best be within the geographical territory of the country. To cleanse the entire digital media is difficult. If internet facilities were available in the mid-’70s, the tyranny of the Emergency would have been far less.

Freedom of speech and expression is a constitutional guarantee. They can be restrained only by law which has some nexus to the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign countries, public order, decency and morality or in relation to contempt of court or incitement of any offence. It is imperative that courts bear in mind that even judicial injunctions ought not to breach constitutional guarantees. There is a public interest in the dissemination of information. Information and opinions, however improbable they sound, are entitled to be published.

Thus, if a high court restrains information or a discussion on a subject relating to the movement of troops within the country, it is clearly in excess of its jurisdiction. The courts cannot enter the political thicket. What are the consequences of the movement of troops and issues relating to movement of troops, and whether they affect national security or otherwise, are exclusively within the political domain. Discussions on subjects of this kind, including dissemination of information and opinion, even on the high improbability of an article carried by a newspaper, are entirely within the domain of the government and not courts. There are no judicially measurable standards by which a court can decide as to what should be published or what should be debated in this regard.

Every exposure of corruption would hurt an individual reputation. Can loss of somebody’s reputation alone be the ground to restrain publication? If allegations in a publication or proposed publication are true, or the author believes them to be true, they are entitled to be published. A publication may be defamatory, but it is entitled to be published as long as it is true or a defence of truth or of a privilege is made out. Lord Denning, the legendary British judge, in a landmark judicial pronouncement, said, “Insofar as the article will be defamatory of the plaintiff, it is clear that he cannot get an injunction. The court will not restrain the publication of an article even though it is defamatory when the defendant says he intends to justify it or make fair comments on a matter of public importance.”

A pre-publication injunction can only be granted in the rarest of rare cases. The jurisdiction to grant such injunction is a very narrow one and can be exercised with great caution specially in a case of libel and slander. A restraint can only be granted if an atrocious libel is wholly unjustified, causing serious injury to the plaintiff and it appears to a court that the defence of privilege or justification is just not possible. A reputation is a matter of private interest. A publication may involve public interest. In a conflict between the two, the scales inevitably lean in favour of public interest. However, private interest and reputations will only be protected when the plea of privilege or justification of truth almost appears impossible to be sustained. The court will grant a restraint order if satisfied that no defence would be available in such cases.

However, in cases where the subject matter of publication deals with issues of governance, corruption, maladministration or on issues of misconduct, a judicial gag order ought never to be granted.

While granting judicial restraint orders, the courts must also be concerned with the possibility of non-enforcement of these orders. The courts ought never to grant an order that cannot be enforced. Thus, an order restraining the electronic media from telecasting a particular news may be rendered otiose if international channels decide to telecast the same news item. Digital sites can be loaded with such information from anywhere in the world. The identity of the loader would remain anonymous. E-mails, blogs and websites across the world may be circulating the restrained article. Social media would be carrying comments at length. Only the national media would stand restrained. The satellite does not respect geographical boundaries. This would lead to a mockery of the judicial order. Courts do not pass orders which are impossible or difficult to implement. Futility of judicial orders which are incapable of enforcement would have to be borne in mind by judges when they pass such orders.

A conflict between competing public interests will always have to be considered when judicial orders restraining publications are made. There is an overriding public interest in publication, dissemination of information and discussion. It is the essence of a democratic society. Even courts ought not to offend such a public interest.

The writer is leader of opposition in the Rajya Sabha