Jus Corpus Law Journal

Open Access Law Journal – Copyright © 2023 – ISSN 2582-7820

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Case Comment: Swatanter Kumar v The Indian Express Ltd &

Avee Singh Dalala

a
Dr B.R. Ambedkar National Law University, Sonipat, India

Received 17 February 2023; Accepted 05 March 2023; Published 09 March 2023

__________________________________

INTRODUCTION

The far-sightedness of the constitution makers made it possible for the fundamental rights to be
flexible. In other words, they while prescribing various fundamental rights also made
reservations about some restrictions. Freedom of Speech and Expression and the Right to Life
and Personal Liberty are guaranteed rights under Article 19(1)1 and Article 212 respectively.
Freedom of the Press and the Right to Fair Trial are consequences of such rights as marked by
the precedents. However, when these rights clash with each other, it takes the form of a Media
Trial. Media Trial pictures itself in the form of media’s negative and prejudicial effect on the
public and the official system of justice and thereby steamrolling either party’s fair trial. It is an
established rule that trial by the press is illegal and immoral in the eyes of the law and can lead
to the travesty of justice in the form of contempt of court. Therefore, there are certain restrictions
including but not limited to Article 19(2)3 for the due administration of justice. The current case

1 Constitution of India 1950, art 19(1)

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involving Swatantar Kumar4 bears some resemblance. The Delhi High Court in this landmark
judgment addresses the clash between the free press and fair trial by using the temporary
injunction as an apt tool for the harmonization of their relationship.

FACTS OF THE CASE

On 10th January 2014, the first defendant, The Indian Express Newspaper Ltd. without taking
the comments of the plaintiff (Former Supreme Court Justice and then National Green Tribunal
Chairperson Swatanter Kumar) published a news item in its newspaper that was backed by the
copy of the complaint that was filed on 30th November 2013 by an undisclosed defendant, a
Supreme Court Judicial Intern. Furthermore, the newspaper agency forwarded the copy of the
complaint to other defendants, the broadcasting agencies “CNN-IBN” and “Times Now” who
also without taking the plaintiff’s input, repeatedly showcased his name along with his
photograph as a Former Justice who committed sexual misconduct on his intern. The
Newspaper Agency later on, after presenting an opportunity to the plaintiff to comment on the
news item; went on to publish another new item along with the photo of the plaintiff on its
website despite the plaintiff’s plea not to publish such a news item. The plaintiff got hold of the
alleged affidavit on 11th January 2014 through his friend wherein the name of the complainant
and accused were blackened out. Thereafter the plaintiff served a legal notice on the respective
defendants, the newspaper, and the broadcasting agencies, however, the media outlets went on
to give credence to the alleged accusations against the plaintiff by continuous reporting. The
plaintiff then filed a petition under section 151 of the CPC 5 requesting a permanent injunction
and damages against the defendants.

LEGAL ISSUES

 Is it appropriate to lay down a permanent injunction against the newspaper and

4 Swatanter Kumar v The Indian Express Ltd (2014) DLT 221

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 Whether the preventive action under the previous issue is moved against the non-party
entities involved in the publishing and broadcasting businesses.
 Whether the news against the plaintiff is defamatory in nature.
 Whether the plaintiff is entitled to damages of Rs 5 Crores or above against the
defendants.

OBSERVATIONS OF THE COURT

The Court has accentuated the basic right of freedom of expression that drives its force from the
propagation of ideas thereby putting the onus on the applicant who prays relief in any form
including an order of injunction against the concerned circulation of ideas by showing how their
right to a fair trial and open justice would be impaired. Thereafter, the court noted that the
postponement order is a neutralizing device evolved by the Courts to balance interests of equal
weightage, viz., freedom of expression guaranteed under Article 19(1) vis-a-vis freedom of fair
trial guaranteed under Article 21 of the Constitution, in the context of the law of contempt. The
court went on to emphasize the objective behind empowering the superior courts in this regard
in the form of keeping a check on the due flow of justice and making sure that principles of open
justice are followed.

The court also pressed on the statement that destructive criticism of the court which includes
the dignity of a former Supreme Court Judge, cannot in any circumstance be tolerated under the
veil of freedom of speech. Therefore, it gave the ratio decidendi that publication based on
destructive criticism had lightened the scales of justice from the plaintiff’s side; thereby
overshadowing his basic right flowing from the general legal principle i.e., innocent until proven
guilty beyond a reasonable doubt. Moreover, while observing the fact that the complaint was
made two and half years after the alleged incident and the accusation was neither examined nor
proved by law, the court in light of the provisions of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition, and Redressal) Act, 2013 decided to take a balanced
approach for both sides especially since the complaint was filed following a significant delay.

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The court further noted that the position of putting up the restriction is to appropriately
overshadow the effect of the right rather than completely canceling it out and the extent of such
restriction differs in each case, therefore the courts have time and again opted for the interim
injunction rather than permanent injunction and that also, only where such publication leads to
real and imminent danger to the administration of justice. Further, while addressing the case,
the Court alleges that a temporary injunction is precautionary and could be utilized to limit any
release that is obstructing the right to have open justice and which is unbiased of public opinion.
Regarding the contents of the said publications, the court was of the view that Continuous
negative publicity about the individuals who are regarded with public confidence and faith is
damaging to their reputation as well as the institution itself.

DECISION

After making the above thorough observations and going by the precedents, the court accepted
the petitioner’s arguments that such allegations in the manner they were presented by the media
outlets is a “media trial” which is illegal and immoral. The court also accepted the petitioner’s
argument that repeated showcasing of the photo of the plaintiff in the newspapers and news
channels creates a bad public image of the plaintiff. On the other hand, the court dismissed the
defendant’s contention of calling their reporting as fair as it found their reporting to be excessive.
In deciding whether it is a fit case of putting an interim injunction, the court applied the
principles of proportionality and the test of necessity. Regarding the principles of
proportionality, the court determined that the media trial can hinder the process of open justice
by lowering the esteem and confidence that the plaintiff has earned throughout his career. The
court held the balance of convenience in favor of the plaintiff considering the excessive prejudice
against the plaintiff due to the bad publicity that was backed by no thorough inquiry by the
statutory bodies. Further, the court considering the established law accepted the plaintiff’s plea
to pass the interim injunction against any other person, or entity, in print or electronic media or
the internet. After following the stringent tests, the court concluded to pass an interim injunction
against the media outlets from publishing and reporting any news which links the accusations
against the plaintiff till they are proved beyond doubt. The Court further held that the news was

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defamatory and that the plaintiff had suffered damages as a result of its publication and thus
directed The Indian Express Ltd. to pay damages amounting to a sum of Rs. 10 lakhs and publish
an apology in its newspaper and also pay the plaintiff's legal costs. The Court while
admonishing the defendants for failing to take any steps to verify the truth of the allegations
made in the news, directed them to remove his photographs from the internet or all other
electronic media as well as uploaded defamatory articles within a day.

ANALYSIS AND CONCLUSION

"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. A true and responsible
journalist must strive to inform the people with an 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.”

- Mons Lopez’s Report to the ECOSOC

Freedom of the Press and the right to fair trial flowing from the wider sense of Article 19 and
Article 21 of the Constitution respectively have time and again come into clash with each other.
As opposed to the free press, which is focused on the dissemination of information and
influencing public opinion; the latter is concerned with conforming to the principles of natural
justice which includes audi alterum partem and also the principle of ei incumbit probatio qui dicit,
non qui negat which implies a presumption of innocence unless proven guilty. The clash between
these two fundamental rights took the form of a “Media Trial” in the instant case. The court’s
decision heavily relies on judicial precedents to harmonize the relationship between the two
fundamental rights. This case, like many others, followed the idea of analyzing the substance of
the publication and its anticipated effect on the public to determine what constituted an
infringing publication that may result in future obstruction of justice. According to the court’s
reasoning, even if some fairness is associated with the adverse publication, the Court may
nonetheless proceed to restrict it and in the instant case, there is no conclusive finding

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concerning the fairness and authenticity of the news. Despite the court’s attempt to harmonize
the relationship between a free press and a fair trial, there is still no end to the future clashes
between the two fundamental rights. However, this case accentuates the importance of truth
and good faith in the publication of articles. It also serves as a reminder to media outlets that
they must take responsibility for the accuracy of the information they publish and that they must
be mindful of the potential harm that false and defamatory statements can cause. Furthermore,
this case serves as a warning to media outlets that they may be held liable for defamation if they
fail to take reasonable steps to verify the accuracy of the information they publish.