It is perhaps a reflection on the government of the day that the courts continue to become more and more central to public discourse. The Supreme Court and the high courts are setting the tenor for those who govern, for law and order personnel and, sometimes, for their own tribe as well. Last month, a former high court chief justice suggested that even as the media constantly needs the judiciary these days to enable it to stay free and function, the judiciary, too, needs the media sometimes to strengthen its hand.
Last week, after the vice-president’s ferocious attack on what he saw as judicial overreach, the Times of India chose to rap Jagdeep Dhankhar for his strident criticism of the Supreme Court’s landmark judgment in the case regarding the governor of Tamil Nadu. The editorial came even as criticism of the Supreme Court’s judgment was growing. Dhankhar had said that Article 142 of the Constitution was a “nuclear missile against democratic forces, available to the judiciary 24x7”. The paper said that the vice-president was departing from norms guiding those who hold largely ceremonial constitutional posts, and suggested that news consumers should discount his
comments because the vice-president has no locus standi in matters of policy, politics and judicial verdicts.
It also criticised the vice-president’s push for an amendment to Article 145(3) of the Constitution. “Here’s a constitutional post holder critiquing a constitutional provision that defines how the country’s top constitutional court should go about its core business.”
In a lecture in New Delhi on the media and the courts last month, the former chief justice of the Orissa High Court, S. Muralidhar, suggested that in order to be truly free and independent, the media in a democratic polity needs an independent judiciary. Equally, for an independent judiciary to remain effective in a democracy, it requires a free media. He referred to the famous press conference by four Supreme Court judges some years back.
Rulings and observations in media-related issues have been coming thick and fast. In March this year, the Delhi High Court upheld press freedom in a defamation case filed against an internet magazine. The case was filed by the co-founder of a Unicorn start-up and said that a report in the magazine was linked to an article published elsewhere which was defamatory. The court cited principles governing defamation proceedings, whereby the doctrine of substantial truth should prevail over minor inaccuracies, provided the essence of the publication remains truthful. The judge also noted that the company had sought an injunction over a year after the article’s publication. The order said that to inhibit such publications would “disturb the equilibrium” necessary to maintain the balance between free speech and the right to reputation.
Given the government’s tireless efforts at image control by weaponising its agencies, the Supreme Court asserted at the end of last month that the police were constitutionally bound to protect the freedom of expression; it added that the State should sensitise officers on constitutional ideals. It ruled that constitutional protection of free speech is not contingent on the popular acceptance of the views expressed. It quashed a first information report registered by the Gujarat Police against the Congress member of Parliament in the Rajya Sabha, Imran Pratapgarhi, over a poem he shared on social media.
Earlier this month, the apex court set aside two Delhi High Court orders. The first was a case involving ANI and Wikipedia, where it said the injunction to remove defamatory content was too broadly worded and not capable of being implemented. The bench said that ANI could make a fresh application for the grant of an injunction with respect to specific contents in the Wikipedia page. In a contempt case arising out of the same defamation case, the Delhi High Court also took exception to another Wikipedia page titled “Asian News International v. Wikimedia Foundation”, which referred to a judge allegedly threatening to shut down Wikipedia in India. The Supreme Court questioned the Delhi High Court’s order directing Wikimedia to remove a page from its site on court proceedings and asked whether courts should be so touchy about criticism.
Wikipedia later approached the Supreme Court against the order to remove the page, and the court reserved its judgment, orally observing that there must first be a prima facie finding, supported by reasons, that the content amounts to contempt before any take-down order can be passed. It asserted that criticism of the judiciary is not contempt.
Justice Muralidhar referred to the government blocking the entire website of Ananda Vikatan, a renowned and popular Tamil magazine, only because it carried a cartoon showing the prime minister, Narendra Modi, in shackles seated next to the president of the United States of America, Donald Trump, during his recent visit to that country. This angered the Bharatiya Janata Party state unit president, on whose complaint the Union ministry of information and broadcasting acted with alacrity. The Madras High Court ordered the lifting of the blockade but, unfortunately, made it conditional upon Ananda Vikatan taking down the cartoon. The judge said this was totally contrary to the settled legal position that mere criticism of the government, even if ill-informed, is not anti-national. It cannot result in a chilling effect on free speech.
Smaller battles are won or partly won in the courts. Bigger ones await their turn, seemingly forgotten.
In 2023, the BBC broadcast a documentary that examined the present prime minister’s actions during the Gujarat riots of 2002 when he was the chief minister of that state. The Union ministry of information and broadcasting immediately invoked the emergency provisions of the Information Technology Rules and ordered it to be taken off air. This was soon followed by income tax personnel conducting surveys of the BBC’s offices in India. The reasons for the take-down order remain a secret till date. A petition questioning the government’s action is yet to be heard and decided by the Supreme Court.
Tomorrow, the Supreme Court will resume hearing petitions pending in the Pegasus spyware case. The committee set up by the Supreme Court, headed by a former apex court judge, submitted a report in 2022 in a sealed cover. The judge overseeing the panel said that the technical committee found no conclusive evidence of the presence of Pegasus but there was some kind of malware in five out of the 29 phones examined. It also said that the government was refusing to cooperate. Thereafter, the hearings were deferred.
Earlier this month, WhatsApp submitted a new document in the US court, which has been hearing its lawsuit against the NSO Group, filed in 2019, accusing the Israeli surveillance tech-maker of exploiting a vulnerability in the chat app to target WhatsApp users. It shows the countries where 1,223 specific victims were targeted with Pegasus spyware. India had the second-largest group of victims, with 100 targeted users. Some of them are known to be journalists. That gives a new impetus to the hearings that are set to resume in the Supreme Court.
Sevanti Ninan is a media commentator. She also publishes the labour newsletter, Worker Web. https://workerweb.curated.co/issues
