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WRIT PETITION No.15399/2019 (GM-RES) PIL

WRIT PETITION No.15399/2019 (GM-RES) PIL

1 WP No.15399/2019

IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 12 th DAY OF APRIL 2019

PRESENT

THE HON’BLE MR.L.NARAYANA SWAMY ACTING CHIEF JUSTICE

AND

THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR

WRIT PETITION No.15399/2019 (GM-RES) PIL

BETWEEN:

ASSOCIATION FOR DEMOCRATIC REFORMS REPRESENTED BY ITS CHAIRMAN AND AUTHORISED REPRESENTATIVE MR. TRILOCHAN SASTRY AGED 59 YEARS AND HAVING ITS REGISTERED OFFICE AT T-95, C.L. HOUSE, 2 ND FLOOR GULMOHAR COMMERCIAL COMPLEX GAUTAM NAGAR, GREEN PARK METRO STATION (GAUTAM NAGAR EXIT) NEW DELHI-110 049 ... PETITIONER

(BY SRI. B.N. HARISH, ADVOCATE)

AND:

1. ELECTION COMMISSION THROUGH ITS CHIEF ELECTORAL OFFICER KARNATAKA HAVING ITS OFFICE AT OFFICE OF THE CHIEF ELECTORAL OFFICER NIRVACHANA NILAYA MAHARANI’S COLLEGE CIRCLE SHESHADRI ROAD, BENGALURU-560 001

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2. TEJASVI SURYA.L.S. S/O SIR L.A. SURYANARAYANA AGED ABOUT 28 YEARS R/A NO.380, 1 ST A MAIN ROAD GIRINAGAR, 1ST PHASE BENGALURU-560 085

3. M/S. THE TIMES OF DAILY , M.G.ROAD -560 001 REPRESENTED BY ITS CHIEF EDITOR

4. M/S. THE DAILY NEWSPAPER, M.G.ROAD BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

5. M/S. THE DAILY NEWSPAPER, M.G.ROAD BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

6. M/S. THE DAILY NEWSPAPER, M.G.ROAD BENGALURU -560 001 REPRESENTED BY ITS CHIEF EDITOR

7. M/S. DAILY NEWSPAPER NO.19 & 21 BHAGAVAN MAHAVEER ROAD INFANTRY ROAD, BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

8. M/S. NEWSPAPER, KORAMANGALA BENGALURU-560 095 REPRESENTED BY ITS CHIEF EDITOR

9. M/S. DAILY DAILY NEWSPAPER, VIDHANA VEEDI QUEENS ROAD CIRCLE, INDIAN EXPRESS BUILDING, BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR 3 WP No.15399/2019

10.M/S. THE PRABHA KANNADA DAILY NEWSPAPER, OPP TO MALLIGE HOSPITAL, HIGH GROUNDS BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

11.M/S. KANNADA DAILY NEWSPAPER NEAR MAKKALA KOOTA, CHAMARAJPETE BENGALURU-560 018 REPRESENTED BY ITS CHIEF EDITOR

12.M/S. KANNADA KANNADA DAILY NEWSPAPER OPP. TO KANNADA SAHITYA PARISHATH CHAMARAJAPETE,BENGALURU-560 018 REPRESENTED BY ITS CHIEF EDITOR

13.M/S. SANJE VANI KANNADA DAILY EVENING NEWS PAPER QUEENS ROAD, BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

14.M/S. E SANJE KANNADA DAILY EVENING NEWS PAPAER DR. ROAD, BENGALURU REPRESENTED BY ITS CHIEF EDITOR

15.M/S. UDAYA VANI KANNADA DAILY NEWSPAPER C/O M/S MANIPAL TRUST, MANIPAL , KARNATAKA REPRESENTED BY ITS CHIEF EDITOR

16.M/S. KANNADA DAILY NEWSPAPER NO.1/1, 1ST FLOOR BHAVURAO DESHPANDE BUILDING 6TH CROSS, 8TH MAIN, MALLESHWARAM BENGALURU-560 003 REPRESENTED BY ITS CHIEF EDITOR

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17.M/S. TV 9 KARNATAKA & NEWS-9 KANNADA & ENGLISH NEWS SATELLITE TELEVISION CHANNELS OWNED BY: M/S ASSOCIATED BROADCASTING COMPANY LIMITED NO.13, RHENIUS STREET, RICHMOND TOWN CIVIL STATION, BENGALURU-560 025 REPRESENTED BY ITS CHIEF EDITOR

18.M/S. SUVARNA NEWS KANNADA NEWS CHANNEL OPP. TO MALLIGE HOSPITAL HIGH GROUNDS, BENGALURU-560001 REPRESENTED BY ITS CHIEF EDITOR

19.M/S. SAMAYA NEWS CHANNEL KASTURIBA ROAD BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

20.M/S. PUBLIC TV NEWS CHANNEL BMTC COMPLEX YASHVANTHAPURA BENGALURU-560 002 REPRESENTED BY ITS CHIEF EDITOR

21.M/S. JANASHREE T V NEWS CHANNEL SALARRPURIA TOWERS BIG BAZAAR BUILDING, NEAR FORUM MALL HOSUR ROAD, BENGALURU-560 095 REPRESENTED BY ITS CHIEF EDITOR

22.M/S. BTV NEWS 32/1-2, CRESCENT TOWER CRESCENT ROAD, HIGH GROUNDS, NEXT TO GOLDFINCH HOTEL BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

23.M/S. RAJ KANNADA NEWS CHANNEL MARATA BUILDING, MILLERS TANK BUND ROAD VASANTH NAGAR, BENGALURU-560052 REPRESENTED BY TS CHIEF EDITOR

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24.M/S. NEWS 18 KANNADA NEWS CHANNEL UNITY BUILDINGS, CSI PREMISES CENTENARY BUILDING BENGALURU-560 027 REPRESENTED BY ITS CHIEF EDITOR

25.M/S. PRAJA TV KANNADA NEWS CHANNEL SAMPARKA INFO MEDIA PVT LTD, SHEZAN LAVELLE 4TH FLOOR, NO. 15, WALTON ROAD BENGALURU-560 001 REPRESENTED BY ITS CHIEF EDITOR

26.M/S. KANNADA JOURNAL NO.5/2 UNIT NO.001, TRUMPH TOWER EAGLE STREET, LANGFORD TOWN BENGALURU-560 025 REPRESENTED BY ITS CHIEF EDITOR

27.M/S. JOURNAL KANNADA JOURNAL NO.9 EAT STREET, BENGALURU-560 004 REPRESENTED BY ITS CHIEF EDITOR

28.M/S. HAI BENGALURU JOURNAL KANNADA JOURNAL NO.2 PADMANABHA NAGAR 2 ND STAGE KADIRENAHALLI CROSS, BANASHANKARI BENGALURU-560 070 REPRESENTED BY ITS CHIEF EDITOR

29.M/S. AGNI KANNADA JOURNAL KANNADA JOURNAL NO.3/A 9TH B MAIN ROAD, PRASHANTH NAGAR ISRO LAYOUT, KANAKAPURA ROAD BENGALURU-560 062 REPRESENTED BY ITS CHIEF EDITOR

30.M/S. PARASHU KANNADA TABLOID NO.7/1, 1 ST MAIN ROAD, RPC LAYOUT VIJAYANAGARA 2 ND STAGE 6 WP No.15399/2019

BENGALURU REPRESENTED BY ITS CHIEF EDITOR

31.M/S. MITRA KANNADA DAILY NEWSPAPER 15 C ACADEMY PVT. LTD. NEAR YERDI DISTILLERIES, BANNIMANTAPA MYSURU REPRESENTED BY ITS CHIEF EDITOR

32.M/S. ENGLISH DAILY NEWSPAPER 15 C ACADEMY NEWSPAERS PVT. LTD., NEAR YERDI DISTILLERIES BANNIMANTAPA MYSURU REPRESENTED BY ITS CHIEF EDITOR

33.M/S. ANDOLANA KANNADA DAILY NEWSPAPER 777 7TH CROSS, RAMANUJA ROAD, MYSURU REPRESENTED BY ITS CHIEF EDITOR

34.M/S. DIGVIJAYA NEWS KANNADA NEWS CHANNEL NO.131/3 LALBAGH ROAD, NEAR PASSPORT SEVA KENDRA BENGALURU-560 018 REPRESENTED BY ITS CHIEF EDITOR

35.M/S. TV5 KANNADA NEWS CHANNEL RAILWAY PARALLEL ROAD KUMARA PARK, BENGALURU REPRESENTED BY ITS CHIEF EDITOR

36.M/S. VISHWAVANI KANNADA DAILY NO.3078, 1 ST CROSS GAYATHRI NAGAR, BENGALURU-560 021 REPRESENTED BY ITS CHIEF EDITOR

37.M/S. WHATSAPP 1ST FLOOR, 3 NORTH AVENUE MAKER MAXITY BANDRA COMPLEX, BANDRA EAST MUMBAI-400 051 REPRESENTED BY MANAGING DIRECTOR 7 WP No.15399/2019

38.M/S. YOUTUBE LLC 901, CHERRY AVESAN BRUNO CA94066 USA ALSO HAVING BANGALORE OFFICE AT C/O GOOGLE INDIA PVT. LTD. NO.3, RMZ INFINITY-TOWER E OLD MADRAS ROAD, 3 RD & 4 TH FLOOR BENGALURU-560016 REPRESENTED BY HEAD OF BRAND & REPUTATION MARKETING & STRATEGY

39.M/S. YAHOO INDIA PVT. LTD. UNITY NO.126 L, 6 TH FLOOR BUILDING NO.12, SOLITAIRE CORPORATE PARK NO.167, GURU HARGOVINDJI MARG (ANDHERI GHATKOPAR LINK ROAD) ANDHERI EAST, MUMBAI-92 REPRESENTED BY MANAGING DIRECTOR

40.M/S. FACEBOOK INDIA CORPORATE OFFICE BUILDING NO.20 RAHEJA MIND SPACE, HITECH CITY -81 REPRESENTED BY MANAGING DIRECTOR

41.M/S. GOOGLE INDIA PVT LTD NO.3, RMZ INFINITY - TOWER E OLD MADRAS ROAD, 3 RD & 4 TH FLOOR BANGALORE-560 016 REPRESENTED BY ITS MANAGING DIRECTOR

42.M/S. KASTURI TV AND KASTURI 24/7 NEWS KANNADA NEWS CHANNEL KASTURI BA ROAD BENGALURU-560 062 REPRESENTED BY ITS CHIEF EDITOR

43.M/S. ABP LIVE NEWS CHANNEL OWNED AND OPERATED BY ABP NEWS NETWORK PVT LTD., A-37, SECTOR-60, -201 307 REPRESENTED BY ITS CHIEF EDITOR

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44.M/S. CNN NEWS GLOBAL BROADCAST NEWS EXPRESS TRADE TOWER PLOT NO.15-16, SECTOR-16A NOIDA-201 301 REPRESENTED BY ITS CHIEF EDITOR

45.M/S. INDIA TODAY INDIA TODAY GROUP MEDIA PLEX FC-8 SECTOR-16A, FLIM CITY, NOIDA-201 301 REPRESENTED BY ITS CHIEF EDITOR

46.M/S. NEWS X B/4, SECTOR - 3, NOIDA-201 301 REPRESENTED BY ITS CHIEF EDITOR

47.M/S. REPUBLIC TV BOMBAY DYEING COMPOUND WORLI, MUMBAI–400 018 REPRESENTED BY ITS CHIEF EDITOR

48.M/S. BENNETT, COLEMAN & COMPANY LTD. 6TH FLOOR, TOWER 1 EQUINOX BUSINESS PARK OFF. BKC LBS MARG, AMBEDKAR ROAD KURLA WEST,MUMBAI-400 070 REPRESENTED BY ITS CHIEF EDITOR

49.M/S. SAMYUKTHA KARNATAKA KANNADA DIALY NEWSPAPER, NO 2 RESIDENCY ROAD, SHANTHALA NAGAR ASHOK NAGAR, BENGALURU-560 025 REPRESENTED BY ITS CHIEF EDITOR

50.M/S. PATRIKE KANNADA FORTNIGHTLY NEWSPAPER JSS HOSPITAL ROAD RAMACHANDRA AGRAHARA MYSURU–570 004

51.M/S. SAMARA NEWS A KANNADA NEWS CHANNEL 9 WP No.15399/2019

JSS HOSPITAL ROAD RAMACHANDRA AGRAHARA MYSURU-570 004 …RESPONDENTS

(BY SHRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SHRI. SUDARSHAN RAMESH, ADVOCATE FOR R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 277 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:29.03.2019 PASSED ON IA NO.1 OF 2019 IN O.S.NO.2526/2019 BY THE LEARNED XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU WHICH IS AT ANNEXURE-A AND ETC.

THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.04.2019, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, ACTING CHIEF JUSTICE , PRONOUNCED THE FOLLOWING:-

ORDER

A non-party in the suit, has approached this Court in this public interest writ petition, with a prayer inter alia to

quash an order passed by a Civil Court on an application

filed under Order XXXIX Rules 1 and 2 of the Code of Civil

Procedure, 1908 (for short ‘CPC’) in a suit.

2. Petitioner claiming to dedicate itself to bring

reforms in conducting elections in a free and fair basis has

presented this writ petition with following prayers: 10 WP No.15399/2019

a) Issue a writ, order or direction in the nature of certiorari quashing the Impugned Order dated 29.03.2019 passed on IA No.1 of 2019 in OS 2526 of 2019 by the Learned XIX Additional City Civil and Session Judge, Bengaluru which is at Annexure A;

b) Issue a writ, order or direction in the nature of mandamus to the Respondent No.1 to enforce the norms and modalities in respect of publication of information and opinion about the contesting candidates that it has already laid down;

c) Pass such further orders as the Hon’ble Court may deem fit in the interests of justice and equity.”

3. We have heard Shri.B.N.Harish, learned Advocate for the petitioner and Shri.Ashok Haranahalli, learned

Senior Advocate for second respondent.

4. Second respondent filed a suit registered as O.S.

No.2526/2019 in the City Civil Court, Bengaluru against various newspaper publishing houses, TV channels,

Whatsapp, Youtube, Facebook, etc. The averments contained in the plaint disclose that plaintiff is fielded as a 11 WP No.15399/2019

candidate to contest election from Bangalore South Lok

Sabha Constituency in the ensuing elections. It is averred that certain people who are inimically disposed towards him were making efforts to tarnish his image by circulating false messages produced in document No.1 annexed to the plaint. Along with the plaint, plaintiff filed an application under Order XXXIX Rules 1 & 2 of the CPC for an order of temporary injunction restraining the defendants from telecasting, transmitting, publishing, distributing, sharing any material with the print media, newspaper, TV channels, local cable operators etc., any false, malicious, defamatory and derogatory news concerning to the plaintiff directly or indirectly. The learned Trial Judge has passed following order:

ORDER

“As per .A.No.1, Ad-interim exparte T.I. is granted against defendants and defendants.(Sic.) The defendants are hereby restrained from making defamatory statements against the plaintiff in any 12 WP No.15399/2019

manner in electronic or printing media as prayed in I.A.No.1 till defendants appear and file their objections to I.A.No.1. The plaintiff shall comply with Order 39 Rule 3(a) of CPC.

Further, plaintiff has to furnish requisite P.F. copies of plaint and I.A. within 3 working days. If plaintiff fails to comply the said order, office is directed to put up the records before the court.

Issue suit summons, emergent notice of I.A.No.1 and Ad-interim exparte T.I. Order to all the defendants if P.F. paid within 3 working days from the date of this order.” Returnable by 27/5/2019

Sd/- XIX Addl. City Civil Judge, B’lore.

5. Petitioner has assailed the interim order passed by the learned City Civil Judge mainly on the following grounds:

• that the voters/citizen form the most vital part of

Democracy. Democracy expects openness which is a

hallmark of a free Society. The right to get information 13 WP No.15399/2019

is a natural right flowing from Democracy. In the

absence of relevant information, voters will be casting

votes based on one sided information;

• the purpose of Press is to advance public interest by

publishing facts and opinion without which electorate

cannot make a responsible judgment. The impugned

order restraining the Press and publication of news is

violative of ‘Freedom of Press’ enshrined in the

Constitution.

6. Shri.Harish, submitted that the impugned order is in the form of a ‘gag order’ and it has ‘chilling effect’ on free flow of information. He relied upon following authorities in support of his case:

Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil [(2010) 8 SCC 329]

State Through Special Cell, New Delhi [(2003) 6 SCC 641]

R.Rajagopal alias R.R.Gopal and another [(1994)6 SCC 632]

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Brij Bhushan and another Vs. State of Delhi [AIR 1950 SC 129]

7. Shri.Ashok Haranahalli, learned Senior Advocate for the plaintiff (second respondent) contended that:

• petitioner is not a party in the suit;

• no order is passed against the petitioner;

• a public interest litigation under Article 226 of the

Constitution is not maintainable against an order

passed in a Civil suit between private parties in an

inter party lis .

He placed reliance on the following authorities:

A.K.Subbaiah Vs. B.N.Garudachar [ ILR 1987 KAR 100]

Magna Publishers Co. Ltd., and others Vs. Shilpa S.Shetty [(2007)12 SCC 792]

Radhey Shyam and another Vs. Chhabi Nath and others [(2015)5 SCC 423]

15 WP No.15399/2019

8. We have carefully considered the rival contentions and perused the records.

9. The principal contention urged on behalf of the petitioner is that, the impugned order is in the form of a

‘gag order’ and obstructs disclosure of complete information about the contesting candidate which vitiates the process of free and fair election.

10. The documents annexed to the plaint, copies of which were made available by Shri. Harish for the petitioner include tweets in social media. One of the tweet is by a rival political party, which is in furtherance to a tweet made by one Dr.Som Dutta.

11. Shri.Ashok Haranahalli’s contention is that the said Dr.Som Dutta has subsequently tweeted stating that she would not allow political parties to use her tweet for their agenda. Thus he argued that the author of the tweet has no grievance. Nonetheless rival political parties are 16 WP No.15399/2019

likely to take undue advantage. Therefore, plaintiff is justified in filing the suit and seeking temporary injunction.

12. The cause of action described in the plaint is the statements which the plaintiff claims to have read. A careful perusal of plaint and annexed documents shows that the tweet made by Dr.Som Dutta and responses to the said tweet in the social media has prompted the plaintiff to file the suit. It is averred in paragraph No.7 that keeping in view the ensuing election, persons inimically disposed towards plaintiff are making efforts to tarnish his image. In paragraph No.12, it is averred that if defendants start telecasting or publishing false and manipulated contents, the same would cause irreparable loss to plaintiff’s reputation.

13. It is relevant to note that calendar of events have been issued and the election process for Election is in progress. Shri.Harish, learned Advocate is right in his 17 WP No.15399/2019

submission that voters have a right to know all information about all contesting candidates.

14. Article 19(1)(a) of the Constitution gives ‘Freedom of Speech and Expression’ to every citizen.

15. The learned Trial Judge, by the impugned order has restrained the defendants from making ‘defamatory statements’ against the plaintiff. What is ‘defamatory’ can be tested and decided only if an act of making a statement or telecasting a program is challenged by the aggrieved person before an appropriate forum.

16. Therefore, in our view, the defendants are not prevented from publishing or telecasting any news item which is not defamatory in their opinion. In case plaintiff is aggrieved by any such publication or telecast of any news item, he may approach the Election Commission of India.

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We dispose of this writ petition with above observation.

No costs.

Sd/- ACTING CHIEF JUSTICE

Sd/- JUDGE

SPS

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