Of Whistleblowers and Gag Orders
April 17, 2019
The world over, as authoritarian regimes goose step forward, the right to free speech and expression has become centre stage. India has just seen its “Pentagon Papers” moment in the Rafale judgment; the US will face its greatest challenge to the First Amendment with the arrest of Julian Assange in the UK and his threatened extradition. Whistleblowers and organizations dedicated to free speech have swung into action to protect the rights of journalists. As the original whistleblower of the Pentagon Papers in an interview from London said if Julian Assange is extradited and charged with espionage, the threat to all journalists the world over is clear. Every journalist is under threat.
It is in this context that the judgment in Rafale must be celebrated. It upholds the right of the press to publish unpublished documents obtained by the press, no matter how they have been obtained, provided they are authentic and relevant to a claim of corrupt practices and can help establish that claim.
The threat of a gag order
What are the other threats to freedom of speech and expression? The obvious one is the “gag order” obtained by individuals in public life. Not too long ago, Justice Swatantra Kumar, a former judge of the Supreme Court, who went on to become the Chairperson of the National Green Tribunal, obtained a “gag order” from the Delhi High Court, restraining the media from publishing allegations of sexual harassment made by an intern against him. Over 28 lawyers appeared for him. The order standstill today. Another example comes from R K Pauchari, the former director general of The Energy and Resources Institute (TERI), who is facing criminal prosecution for sexual harassment by a TERI employee. Pachauri not only filed for a gag order against the press but also against the lawyer for one of the victims. These gag orders are obtained in suits filed for defamation against the author of the allegations and the media.
One such order was obtained by a Lok Sabha candidate for the ruling Bharatiya Janata Party, Tejas Surya from the City Civil Court in Bangalore. Although 49 newspapers, television channels and other media outlets, including YouTube and Facebook, were restrained from publishing anything defamatory against Surya, none of them chose to challenge the order.
It is in this context that the Association for Democratic Reforms filed a public interest petition in the Karnataka High Court, raising the plea of the right of the voter to know all there is to know about the candidate.
The High Court was perhaps helpless, but it did interpret the order to neutralize the impact of the gag order.
Considering that it was election time and Tejas Surya had held himself out to be a public personality, the argument was irresistable that voters had a right to know about his credentials and background before casting their vote.
Defamation vs Gag
One of the biggest threats that come to free speech is the threat of a defamation suit. It is one thing to file a suit for defamation and another to obtain a gag order. In a civil suit for defamation, the author of the alleged defamatory article is at liberty to plead “justification” – to argue that the statements are true. In such a situation a gag order cannot be issued at all. That apart, it is in public interest to put information which is true in the public domain about public personalities or talk about issues of great public concern. Such disclosure is not only in public interest but also “necessary in a democratic society”.
The petition filed by ADR hence clearly points to the necessity of the voters in a democratic society to know what there is to know about the character and morals of a candidate and the gap order cleared violated the rights of the voter. (Read here)
Hence the High Court resolved the dilemma by saying that the gag order passed by the trial court did not prevent ALL publications, but those that were allegedly defamatory. For such alleged defamatory publications, there is a remedy and the candidate is free or approach the Election Commission or indeed file a suit for damages.
The eventual outcome of the combined orders is that a publication can be made of the fact that the lady in question did allege that he misused his relationship with her since that is true and can be verified from her account and there can be no prior restraint on such publication. The rest is up to him to sue or not to sue her for defamation or to sue the publications for defamation.
The real tragedy of the case is that neither the press nor the lady in question chose to challenge the order of the trial court. Perhaps this too can be understood in the light to the heavy costs of litigation, particularly when the candidate is well endowed with money and political clout.
First published in The Leaflet.
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