Soon after chastising the lawyers for raising their voices in his court room, Chief Justice of India (CJI) Dipak Misra took it upon himself to berate the media for allegedly adding “defamatory” comments for their readers. His comments were provoked during the hearing of a petition filed by senior journalists against an order of the Gujarat court challenging notices issued to the Editors of “The Wire” who had nothing to do with an allegedly scurrilous article penned by a contributor.
In the USA, a landmark judgment called The New York Times versus Sullivan was delivered in 1966 when the US Supreme Court laid down that public figures could not succeed in defamation suits filed against newspapers without evidence that they deliberately published false information against the plaintiffs. The right to debate the qualities of public figures could not be throttled by intimidating newspapers with defamation suits, even though the information may have been false. This was because it was difficult to verify every single allegation before publication.
In India, our democracy lags behind by light years because an attempt to decriminalise the law of defamation was thrown out by the Indian Supreme Court. This petition was filed by Subramaniam Swamy, who is a saffron brigade leader and known for making wild allegations against Sonia Gandhi and her family. So, like “The Wire”, beware of what you publish. Few editors subscribe to the dictum of the late Russy Karanjia who founded the now defunct “Blitz.” He famously declared : “Publish and be Damned.”
The magazine, Outlook, under late Vinod Mehta, was at the receiving end of one such defamation suit when they alleged that former Union defence minister Sharad Pawar had links with hawala operators who were linked to gangster Dawood Ibrahim. One such hawala operator Mool Chand Chokshi alleged he had paid Rs 72 lakhs to Sharad Pawar. Gujarat Samachar, the 150-year-old Mumbai newspaper had telephonically interviewed Dawood Ibrahim who allegedly told the journalist he “had good relations with Sharad Pawar.”
In his memoirs, the late Vinod Mehta, who was the then editor of Outlook, stated how Pawar filed a Rs 100 crore defamation suit which ended in an out-of-court settlement with Mehta agreeing to publish a symptomatic apology that there were no documents to link Pawar with Dawood Ibrahim. The former editor of The Illustrated Weekly of India (now defunct), Pritish Nandy, now an MP, also published a front page apology after he splashed a cover story in The Weekly on the alleged sex escapades of former Orissa chief minister J B Pattnaik, who sent a team of policemen from Orissa to Mumbai to arrest Nandy.
The point here is that a free judiciary and a free media are both indispensable in a democracy because the judiciary has to deliver justice by following the civil and criminal procedural codes while the media is not bound by these laws. As a result, influential leaders may be accused of manipulating the system because getting first hand evidence is impossible whereas the media can still investigate and pinpoint the culprits. But unlike the judiciary, it cannot punish them.
The judiciary and the media are often at loggerheads because the Constitution ignores the media, which enjoys press freedom because of the elastic judicial interpretation of the right to freedom of speech guaranteed by Article 19 (1) (a). The judiciary is selected in secrecy and not elected like the executive and the legislature which is given enormous power and privileges by the Constitution.
The judiciary is homogenous because all judges have basic LLB degrees whereas the media is heterogenous consisting of several thousand companies with different ideologies, languages and target audiences competing between themselves. On the other hand, the judges do not compete between themselves while delivering justice because the head of the judicial family is the CJI.
Every judge within India is guaranteed a basic salary of at least Rs 40,000 per month with government housing and other perks. Conversely, the media does not have the privilege to withhold its sources of information from the courts which is called a “shield law”. Such shield laws been enacted in advanced democracies like the USA, which grants its journalists tremendous freedom to investigate, expose even sexual escapades of its Presidents like Donald Trump and Bill Clinton and even force them to resign like the late Richard Nixon.
The Indian media is too cowed down to force any governor or prime minister to resign although the sexual romps of former governor N D Tiwari, whose illegitimate son is a lawyer and former legal advisor to the UP government, was an open secret.
Rather than lecture to the media, the judiciary and the executive should leave it alone to do its job of exposing nefarious politicians. The judiciary cannot expose corrupt politicians but only punish them when there is evidence. But the media can name and shame them which is a sufficient deterrent for corrupt politicians and power brokers. This is why the media needs to be given the rudimentary privilege to withhold its sources of information from the courts.
Olav Albuquerque is a journalist-turned-advocate of the Bombay high court with a PhD in media law.
