ISBN 81-89479-74-1 IN DEFENCE OF JOURNALISTS 9 788189 479749 This is a publication of the Human Rights Law Network written to IN DEFENCE OF JOURNALISTS inform journalists and the lawyers representing them of their free speech rights and responsibilities under the most current law in India. Free speech in the media is an integral part of democracy and necessary for the protection and enforcement of many other constitutional rights. Journalists in India stand at the forefront in the battle against censorship, corruption and repression, and are to be commended for their defense of democracy. In Defence of Journalists has been organised into chapters that cover the broad issues and charges which are common in cases dealing with journalists. At the beginning of each chapter is a brief background and a summary of the law that coincides with the topic. Otherwise the chapters consist of excerpted judgments which highlight various rules and arguments from the courts of India. Each case is preceded by a summary designed to quickly recite the facts and rule of the case. In Defence of Journalists is written with the journalists in mind. While it is not intended to be a substitute for legal advice in any way whatsoever, it is hoped that this book will allow journalists to be better informed about their rights and their position at law, and to assist them in speaking truth to power. Human Rights Law Network 576, Masjid Road, Jangpura, Nolan Shutler New Delhi – 110014, India Nick Chapman Ph: +91-11-24379855/56 E-mail: [email protected] Harsh Dobhal IN DEFENCE OF JOURNALISTS NOLAN SHUTLER NICK CHAPMAN HARSH DOBHAL New Delhi November 2011 Human Rights Law Network VISION n To protect fundamental human rights, increase access to basic resources for the marginalised com- munities, and eliminate discrimination. n To create a justice delivery system that is accessible, accountable, transparent, efficient and afford- able, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. n Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from social movements to refine legal concepts and strategies. In Defence of Journalists November 2011 © Socio Legal Information Centre* ISBN: 81-89479-74-1 Nolan Shutler, Nick Chapman, Harsh Dobhal Text Editor: Suresh Nautiyal Cover Illustration: Arun Sawant Design: Birendra K Gupta Printed at: Shivam Sundaram, C-9, Green Park Extn. New Delhi Published by: Human Rights Law Network (HRLN) (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura, New Delhi — 110014, India Ph: +91-11-24379855/56 E-mail: [email protected] Supported by: European Union Disclaimer The views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. * Any section of this volume may be reproduced without prior permission of the Human Rights Law Network for public interest purposes with appropriate acknowledgement. ACKNOWLEDGMENTS We wish to express our sincere thanks to Dr. Colin Gonsalves, Senior Advocate of the Supreme Court of India, for the guidance he has offered on this project. His dedication and enthusiasm is infectious, and he has played a major role in ensuring that this book is published and made available to journalists and others around India. Additionally, we would like to express our gratitude to others at the Human Rights Law Network, most notably Jouhar Adeeb, Anuj Castelino and Abida Khatoon. Equally, the work of Kartik Sharma, Ashley Tomlinson and Maura Finn in the Human Rights Law Network’s publication Freedom of the Press: Using the Law to Defend Journalists has been very helpful in completing this publication. We would also like to thank European Union and Evangelischer Entwicklungsdienst for their invaluable contribution to the Human Rights Law Network and the development of human rights across India. Finally, we wish to thank our friends and family in Delhi, Portland, Wellington and elsewhere for their support in this adventure and the others to come. Nolan Shutler Nick Chapman Harsh Dobhal CONTENTS ACKNOWLEDGMENTS III INTRODUCTION IX CHAPTER ONE: OBSCENITY 1 1. INDIAN PENAL CODE, 1860 5 2. CONSTITUTION OF INDIA, 1949 7 3. RANJIT D. UDESHI VERSUS THE STATE OF MAHARASHTRA 8 4. SHRI CHANDRAKANT KALYANDAS KAKODAR VERSUS THE STATE OF MAHARASHTRA AND OTHERS 13 5. SAMARESH BOSE AND ANOTHER VERSUS AMAL MITRA AND ANOTHER 16 6. AJAY GOSWAMI VERSUS THE UNION OF INDIA AND OTHERS 23 7. DIRECTOR GENERAL OF DOORDARSHAN AND OTHERS VERSUS ANAND PATWARDHAM AND ANOTHER 30 CHAPTER TWO: SEDITION AND CENSORSHIP 35 1. INDIAN PENAL CODE, 1860 39 2. THE CODE OF CRIMINAL PROCEDURE, 1973 41 3. RAMJI LAL MODI VERSUS THE STATE OF UTTAR PRADESH 43 4. KEDAR NATH SINGH VERSUS THE STATE OF BIHAR 48 5. S. RANGARAJAN VERSUS P. JAGJIVAN RAM 56 6. SRI BARAGUR RAMACHANDRAPPA AND OTHERS VERSUS STATE OF KARNATAKA AND OTHERS 63 7. STATE OF MAHARASHTRA AND OTHERS VERSUS SANGHARAJ DAMODAR RUPAWATE AND OTHERS 67 CHAPTER THREE: CONTEMPT OF COURT 73 1. CONTEMPT OF COURTS ACT, 1971 77 2. CONSTITUTION OF INDIA, 1949 81 3. BATHINA RAMAKRISHNA REDDY VERSUS THE STATE OF MADRAS 82 4. E. M. SANKARAN NAMBOODIRIPAD VERSUS T. NARAYANAN NAMBIAR 87 5. IN RE S. MULGAKAR VERSUS UNKNOWN 94 vi • In Defence of Journalists 6. RAMA DAYAL MARKARHA VERSUS THE STATE OF MADHYA PRADESH 107 7. ASHARAM M. JAIN VERSUS A. T. GUPTA AND OTHERS 113 8. S. K. SUNDARAM VERSUS UNKNOWN 116 9. IN RE ARUNDHATI ROY VERSUS UNKNOWN 120 10. RAJENDRA SAIL VERSUS MADYA PRADESH HIGH COURT BAR ASSOCIATION AND OTHERS 131 11. THE RESPONSIBILITY OF FREEDOM – Justice Ajit Prakash Shah 145 CHAPTER FOUR: DEFAMATION 149 1. INDIAN PENAL CODE, 1860 153 2. CONSTITUTION OF INDIA, 1949 157 3. SEWAKRAM SOBHANI VERSUS R. K. KARANJIA 158 4. CHARANJIT SINGH VERSUS ARUN PURIE AND OTHERS 164 5. R. RAJAGOPAL AND ANOTHER VERSUS THE STATE OF TAMIL NADU AND OTHERS 167 6. KHUSHWANT SINGH AND ANOTHER VERSUS MANEKA GANDHI 179 7. HIS HOLINESS SHAMAR RIMPOCHE VERSUS LEA TERHUNE AND OTHERS 188 CHAPTER FIVE: DISCLOSURE OF SOURCES 191 1. PRESS COUNCIL ACT, 1978 195 2. JAI PARKASH AGGARWAL VERSUS VISHAMBHAR DUTT SHARMA AND OTHERS 196 3. JAVED AKHTAR VERSUS LANA PUBLISHING COMPANY PRIVATE LIMITED AND OTHERS 199 4. COURT ON ITS OWN MOTION VERSUS THE PIONEER 205 5. PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANOTHER VERSUS THE UNION OF INDIA 208 CHAPTER SIX: PARLIAMENTARY PRIVILEGE 213 1. CONSTITUTION OF INDIA, 1949 216 2. PANDIT M. S. SHARMA VERSUS SHRI SRI KRISHNA SINHA AND OTHERS 218 3. SHRI DINESH TRIVEDI, M. P. AND OTHERS VERSUS UNION OF INDIA AND OTHERS 239 CHAPTER SEVEN: STING OPERATIONS 245 1. COURT ON ITS OWN MOTION VERSUS STATE 248 2. COURT ON ITS OWN MOTION VERSUS STATE AND OTHERS 254 3. R. K. ANAND VERSUS REGISTRAR, DELHI HIGH COURT 271 4. PRICE OF TAKING ON PRIVILEGED CORRUPTION – Aniruddha Bahal 280 Contents • vii CHAPTER EIGHT: ATTACK ON JOURNALISTS AND MEDIA FREEDOM 285 1. ATTACK ON JOURNALISTS AND MEDIA FREEDOM: THE INDIAN STORY – Harsh Dobhal 287 2. REPORTING IN TIMES OF CONFLICT – Maqbool Sahil 296 3. KHAKI’S WRATH – Laxman Choudhury 301 4. PAINTED AN ENEMY OF THE STATE FOR BEING THE PEOPLE’S VOICE – Lenin Kumar 304 5. BRAVING SAMANTVADI POLITICIANS AND ADMINISTRATION – Shilvant Pachuari 306 6. MACHINATIONS OF THE UNCOUTH – B. V. Seetaram 308 7. CONCOCTIONS OF TROIKA – Iftikhar Gilani 312 8. WALKING ON THE RAZOR’S EDGE – Irengbam Arun 316 INTRODUCTION “When the conspiracy of lies surrounding me demands of me to silence the one word of truth given to me, that word becomes the one word I wish to utter above all others.” Andre P. Brink reedom of speech, and in particular, the freedom of the press, is, as Chief Justice BP Sinha Fstated in Kedar Nath Singh v. the State of Bihar [1962] AIR 955, “the sine qua non of a democratic form of government that our Constitution has established.” Despite this and many other high-minded declarations of the importance of journalistic freedom, the courts of India have given little actual protection to the journalists who regularly put their lives and reputations on the line to provide the public with current and relevant information. Instead, in almost every instance a journalist or his editor must risk the wrath of the courts whenever they publish on sensitive issues, which, of course, are often the instances when such information is most necessary to informing the public. It is with this “journalists’ dilemma” in mind that this casebook has been conceived and written. Though any journalist who faces the charges discussed in this book faces an uphill battle, it is hoped that the chapters included here will inform them of the general parameters set by precedent and statute, and therefore what burdens they will have to prove and where they might make novel arguments. While this book is intended to discuss as wide a range of topics and arguments as possible, it is by no means intended to be comprehensive. Rather our intention is to provide a clear and succinct statement of the law. Equally, this book is not intended to be a substitute for formal legal advice. One threshold question that courts will have to deal with is whether the content in question qualifies as “Obscene.” The courts of India have come a great distance from the British common law rule laid out by Chief Justice Alexander Cockburn, which makes obscene that which would be found to incite violence or other untoward reactions in people inclined to such reactions.