Gag Orders and the Silencing of the Press

This Blog is Written by Adarsh Tripathi, 3rd Year, LLB, HVPS College, Mumbai. 

The Indian Billionaire Gautam Adani has recently been the topic of discussion in the Indian media, Adani through his representatives has filed a case of defamation against several Journalists and Media houses stating that articles have been published with an aim to harm its reputation and to overshadow Company’s contribution in the country. The dispute arose when an ex-parte gag order was passed by a Senior Civil Judge in the case filed by Adani Enterprises Limited (AEL), in the said case it was alleged that defamatory content against AEL was being circulated to defame and harm the company’s reputation. The Delhi Civil Court had restrained several Journalists which includes Akash Banerjee, Dhruv Rathee, MK Venu, Paranjoy Guha Thakurta and several other Journalists and Media houses, MIB (Ministry of Information and Broadcasting) had issued notice to several journalists asking them to restrain themselves from publishing anything related to AEL and to takedown existing content that is made to defame the company. The Court had given the order in the Favour of AEL without bringing to notice the kind of content that has been called defamatory, question arose against this order highlighting how this can become a bad precedent barring journalists from exercising their Right to freedom of Speech and Expression. Following this the order was challenged, and The District Judge of Rohini Court has allowed an appeal and the order imposed has been partially set aside. This article will examine the Ashok Kumar orders (John Doe), Gag orders and SLAPP Laws along with their implications on the Indian Press freedom.

What is a Gag Order in Law?

Gag orders can restrict media houses or journalists from publishing any information regarding specific matters, cases, personalities and can be imposed by both governments and judiciary. Such restrictions come into existence through Article 19(2) which has provisions for implementing reasonable restrictions on freedom of speech and expression. Gag order falls under Section 144 of the CrPC for government to put restrictions on public statements during law-and-order concerns. Whereas for the judiciary gag order is under Contempt of Court Act 1971 to curb discussions of ongoing cases to prevent judicial influence. Gag order has been used by the judiciary in case of Justice C.S. Karnan who happens to be the first sitting judge against whom contempt of court proceedings were initiated which faced a lot of backlash from the public for imposing restrictions on media coverage citing that this would harm the reputation and integrity of the Judiciary. Similarly Gag orders have been passed in various cases to restrict media coverage or publication of any content.

What is John Doe (Ashok Kumar) Order?

John doe order also known as Ashok Kumar order in India or the Anton pillar, the concept of John Doe order got introduced in India through the case of Taj Televison vs Rajan Mandal, the Delhi High Court had passed a John doe order against Brodcasting FIFA world cup of 2002 by the cable operators who were unlawfully broadcasting the world cup. John doe orders are passed in case the individual responsible for the infringement is not known this allows the party to act in case it is not known who the party is as it can be an unidentified individual or a group. This is often used in matters of copyright infringement through unlawful production and distribution of copyrighted movies, music and literary works. While initially it was meant to curb unlawful distribution of copyrighted materials and to protect intellectual property but currently it is being used in civil defamation matters as seen in the case of AEL. Extending this tool to stop journalists from exercising their right to speech and expression can be a setback for the freedom of Press in India.

SLAPP Laws

SLAPP stands for Strategic Legal Action against Public Participation, often filed by those in influential positions such as corporations, political parties, or affluent individuals in order to intimidate by overburdening individuals with legal cases exhausting them financially by making them bear the burden of defense costs. While these cases might lack legal grounds, they are enough to exhaust the individual and silence him.

Gag Orders vs Press Freedom

The Constitution of India grants individuals the right to speech and freedom of expression under Article 19(1)(a) along with certain restrictions under Article 19(2), making sure the freedom is not absolute and is controlled according to the necessity. When courts issue ex-parte orders and in matters such as AEL without clearly defining what exactly is defamatory, such orders not only set bad precedents but also come through as vague, such orders cause journalists to avoid reporting against affluent individuals due to the fear of prolonged litigation. Moreover, not defining what exactly is considered defamatory raises the question of lack of transparency and gives rise to speculations of such orders being aimed at suppressing criticism. Issuing such ex-parte orders should come with judicial accountability making sure there is no misuse. This case highlights the growing tension between corporate bodies and the freedom of press in India. While Corporate bodies have the right to protect their brand image and reputation, similarly the press has the freedom to bring forth their views, which must be balanced, and the right of one party should not be given priority over the rights of others. As Gag orders, John doe and SLAPP Laws are becoming more prevalent there should be strong safeguards to make sure that it is not misused to silence somebody.