Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
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The High Court of Karnataka dropped criminal contempt charges against the accused but fined them a total of INR 73,00,000 (approx. USD985) for publishing false news articles suggesting that the judiciary was corrupt. The news items appeared in an English daily newspaper and on three news channels with headlines including “High Court vigilance wing cracks down on corrupt judges” and “Rs. 9 crores (approx. USD1,215,611) seized in raid on judge”. The judges held that the reckless publication of false news items amounted to “scandalizing the court” but in light of an unconditional apology by the accused, an affidavit that the editorial policies of the paper would be improved, and the initiation of disciplinary action against the relevant editors, they adopted “majestic liberalism” and limited their judgment to a fine.
On December 16,, 2019, Deccan Herald, an English daily newspaper in India with an estimated circulation of 200,000, published a news article with headlines, “Rs. 9 crores seized in raid on judge” and “High Court vigilance wing cracks down on corrupt judges”. The news items reported that the vigilance wing of the Karnataka High Court had seized a sum of Rs. 9 crores (approx. USD1,215,611) from the residence of a City Civil Court (Bengaluru) judge. It further reported that notices were issued to forty eight judges of the trial courts due to allegations of non-performance and corruption charges, and they were summoned for questioning and asked to reply to the charges or to quit from the service. The report also suggested the transfer of the Chief Justice of Karnataka High Court to the Allahabad High Court. Lastly, there was a specific allegation that more than twenty judges had taken voluntary retirement in the last forty five days, but the reasons why were not clear.
After the publication of new items by Deccan Herald, three other television channels also showed this news on their channels. One of these channels also showed a video of the currency notes being counted; reinforcing the fact and “creating confidence in the mind of viewers” that a raid was conducted and cash was indeed recovered.
After the initiation of contempt proceedings, an unconditional apology was issued by the accused for the “false contents, inappropriate language and unintended imputations against the judiciary”.
The two-judge bench was presided over by Chief Justice of Karnataka High Court, Abhay Sreenivas Oka and Justice Hemant Chandangoudar. The central issues for determination by the Court were the nature and the extent of contemptuous conduct on the part of the accused, and whether the unconditional apology tendered by the accused was bona fide, and if so, then the quantum of costs to be imposed on the accused.
Under the Indian Contempt of Courts Act, 1971, any attempt which does or tends to scandalize, lower, prejudice, interfere or obstruct the administration of justice is regarded as a ‘criminal contempt’. By virtue of Article 215 and 129 of the Constitution of India, the High Courts and Supreme Court have an inherent power to engage in ‘judicial self-dealing’ as a constitutional right, thus enabling the Courts to initiate contempt suo moto, which happened in the present case.
While deciding the case, the judges laid emphasis on Prem Surana v. Additional Munsif & Judicial Magistrate, where the Supreme Court had stated that: “The judges should not be hypersensitive but that does not mean and imply that they ought to maintain angelic silence also. Immaterial it is as to the person but it is the seat of justice which needs protection: it is the image of the judicial system which needs protection. Nobody can be permitted to tarnish the image of the temple of justice. The majesty of the court shall have to be maintained and there ought not to be any compromise or leniency in that regard” [p. 19].
Quoting the above judgment, the judges in the present case, decided to break the silence and take action against the contemptuous acts of the accused, which had “tarnished the image of the judiciary in the State and of the institution of High Court” [p. 19]. The judges were of the opinion that the judiciary needed protection against the false, scandalous and frivolous news items. This is because the judges themselves could state what is false and what is not, due to “self imposed constraints” [p. 21]. The Court observed that there was overwhelming evidence that no raid was conducted by the vigilance cell and the report was false, however, the judicial officials could not publicly speak out about the false allegations due to a professional obligation to refrain from engaging in public controversy.
The senior news editor, deputy editor and the editor of Deccan Herald did not insist on verification of the news even though they were aware about the “sensitive nature of news” [p. 25]. They did not doubt the veracity of the facts stated therein. The judges noted that the senior news editor who had reviewed the article did not take “basic and elementary care” to get confirmation about the contents of the article from the Registry before printing the same [p. 28]. The Court further remarked on the ill-intention of the accused to create “a sensational story to be published on the first page containing false allegations”, instead of writing a truthful version of what had really happened [p. 29].
Therefore, the judges held that the unverified allegations by the accused that the judges were corrupt and of questionable integrity, and raids were conducted at their residences, showed the judiciary in a very poor light [p. 3] and this reckless publication of ‘false news items’, without confirmation from the administrative side of the High Court, amounted to “scandalizing the court” [p. 11], consequently creating doubt in minds of people regarding judiciary [p. 18]. Further, the suggestion that the vigilance branch of the High Court was usurping the police power by conducting raids, tended to lower the image of the judiciary [p. 13], resulting in litigants and lawyers looking upon every judge with suspicion.
Furthermore, the judges commented on the lack of elementary knowledge of legal procedures by journalists. The Court observed that in the present case, the reporter had published an article of a “very serious nature on the functioning of the court and the disciplinary matters” without any knowledge of law [p. 29]. This was because the vigilance cell of the High Court is not a police department which has power to raid the houses of judicial officers and the Chief Justice of the High Court cannot procure the presence of judicial officers before him at his whims and fancies, but this was incorrectly reported by the article. If a judicial officer is to be thrown out of the service, a fully fledged inquiry is required to be conducted. The only other way was compulsory retirement i.e. on completion of fifty years. However, all these proceedings were reported incorrectly [p. 29]. Therefore, the judges emphasized that the media persons wanting to write on the legal system should have basic knowledge of law, so that false news could be avoided. Several potential guidelines, such as an in-house training program for all the legal correspondents, were discussed.
Lastly, the Court discussed the cases of In Re S. Mulgaokar and Regina v. Metropolitan Police Commissioner to affirm freedom of press to criticize officials on matters of public interest, but also to accentuate that the power to punish for contempt should be exercised whenever “justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process” [p. 34]. The judges also stated that it should be exercised sparingly and when apology is sought and remorse is shown by the accused, then the Courts should exercise what is described as “majestic liberalism” [p. 35]. Therefore, after looking at the unconditional apology provided by the accused, an affidavit that the editorial policies of the paper were improved, and the initiation of disciplinary action against the relevant editors, the judges in the instant case, adopted “majestic liberalism”, showed “mercy and magnanimity”, and “ignored the gross act of criminal contempt” [p. 49]. With this, the Court accepted a total cost of INR 73,00,000 from all the six accused.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by waiving criminal contempt charges for the publication of false news in light of an apology from the accused but contracts expression by imposing a fine of around USD1,215,611.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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