In less than a week from when an alleged ‘sex for job’ tape of a former Karnataka Minister triggered a political controversy, half a dozen ministers from the state cabinet have made a beeline to get injunctions for material, allegedly defamatory in nature, that may or may not be aired against them. This, after the activist who released the alleged ‘sex for job’ tape said that he is in possesion of several incriminaing CDs, all of which he intends to release in the coming days.
The six ministers in question— Dr K Sudhakar, Shivaram Hebbar, BC Patil, ST Somashekar, Narayan Gowda, and Byrati Basavaraj—had resigned from the Congress-JD(S) government to join the BJP and paved the way for the current BS Yediyurappa-led BJP government.
While the Bengaluru City Civil Court has been prompt in awarding the temporary injunction, legal experts have criticised the court for giving in to the demands of the ministers.
Although six ministers getting injunctions before telecast of news is unprecedented, the state has seen several cases where politicians have obtained injunctions. Interestingly, while Union Minister Sadananda Gowda had said that the injunctions will add to the confusion, his son Karthik Gowda had resorted to a similar tactic in 2014. Karthik had obtained a temporary injunction, from a Bengaluru city court, against the media telecasting allegations made by a young woman who had accused him of rape. The actress alleged that Karthik had assured her he would marry her, but she later learnt that he was engaged to someone else. RT Nagar police in Bengaluru had registered an FIR in the case with Karthik being charged with rape and cheating.
In 2017, BJP Rajya Sabha MP, Rajeev Chandrasekhar obtained an injunction from 40th Additional City Civil Court Judge in Bengaluru to stop a website from communicating, exhibiting, publishing, distributing, providing access to or sending any information or communication, with respect to two articles. One of the news items pertained to defense deals that Rajeev allegedly had conflict of interest with and the other was about his investment in Republic Network. In 2019, the MP’s petition was rejected by the court. While dismissing the application, the Sessions Judge Ravindra Joshi said, “The press is functioning as the watchdog of the constitution. It is the duty of the press to create public opinion about the policy of the government… If the press is restrained from publishing any information about the public or public servants, it amounts to curtailing the right of media persons from discharging [their] duties.”
Another BJP leader, Tejasvi Surya had gotten an injunction even before he contested in his first election. On the eve of the 2019 Lok Sabha elections, Tejasvi who was the BJP candidate from Bengaluru South, got an injunction against 49 media outlets from reporting ‘any defamatory statement in any manner’. The ex parte temporary injunction was issued after a woman made allegations of sexual harassment against Tejasvi.
Not just BJP leaders, but Congress leaders too have, in the past, obtained injunctions from courts. In 2016, JT Patil, the then Congress MLA from Bilgi obtained an injunction from the Karnataka High Court restraining 10 private Kannada television channels from broadcasting “untrue or false news”. This after a Kannada channel reportedly ran a ticker about an alleged sex scandal visual related to Patil. The City Civil Court, as well as the Sessions Court had declined to give an injunction but the Karnataka High Court gave Patil relief.
Naheed Ataullah, senior journalist, questions why certain politicians felt the need to obtain a stay even before their names were mentioned in any case. “This is the first time that a bulk of ministers have gone to a court and sought injunctions against the media even before something has been published. This is like anticipatory bail. There are 19 CDs reportedly and they can be of any politician. Why are these MLAs feeling guilty?”
Many of these injunctions were ex parte meaning that just one side was heard before passing the injunction order. In a few instances, courts which have denied injunction pleas have stated that a preemptive censorship order, even before the material has been telecast, amounts to stifling of freedom of the press and have added that if anything defamatory is found, the aggrieved party can then file criminal defamation against the respondents.
But this principle has not been followed by all and the frequency and alacrity with which many politicians have managed to get stay orders is worrisome.
Retired Karnataka High Court Judge, Justice MF Saldanha slammed the discretionary orders, which he pointed out seems to favour the influential more often than not.
“Irrespective of whether it be the Supreme Court, the High Court or the lower courts, these are discretionary orders and if the discretion is rightly exercised no such orders should be passed. But the question arises why at the drop of the hat, these politicians manage to get these orders.” He added, “There are many instances where it is often clear that an order comes just by the mere presence of a particular lawyer. Of late, the political class has been able to get these unfair advantages way too often.”
He further added, that it is unfortunate that it is not easy to review these “bad” orders in higher courts as it may require money and other resources. He said these incidents are recurring more often than ever before as a result of a fear psychosis. “Earlier there was a thing called public opinion. And how do you express it? You make a statement or you demonstrate or something else. But in the present situation people are afraid to speak up. The last part is that even if there is some public opinion it fails to find light in mainstream media,” he added.
Former State Public Prosecutor at the Karnataka High Court, BT Venkatesh termed the present order as an “absolutely improper” one. “The court should not have passed an order of this nature. This is information about a commission of irregularity and abuse of power. He cited that there are multiple precedents across the globe including the Profumo affair in the UK, which led to the resignation of John Profumo, the Secretary of State for War.
“The courts should not interfere where the media is explaining the illegalities committed by the people who are in power. It is the media’s job to hold all public servants accountable,” he further said. “Once a person enjoys the power of a public office, he cannot enjoy protection from this.” He added that this is not a recent phenomenon in Karnataka’s public life.
In 1986, BN Garudachar, a former IPS officer, had gone to court to seek an injunction. In an order in this case, the Karnataka High Court had said that freedom of speech has certain restrictions, and that it was a person’s duty not to harm others by speech. Though this order is relied upon by many courts while issuing media gags, many have pointed out that is a flawed order, which has been made redundant by other related precedents in the Supreme Court.
Venkatesh also said, “Unfortunately, when it comes down to people with influence there comes the question of fairness of courts. Tragedy is that the judicial system is besotted with political expediency rather than fairness.”
While, when it comes to cases where the press has been irresponsible in airing unverified material, pertaining to public servants’ private lives, the Indian Penal Code provides for sections including Criminal Defamation to address this. Overenthusiasm of the judiciary in granting quick injunctions, even in cases pertaining to public good, could skew the imbalance of the four pillars of democracy, even further.