On April 30, the top leadership of the Janata Dal (Secular) or JD(S) suspended its MP Prajwal Revanna amid a row over explicit videos.
According to reports, Revanna had obtained a gag order against 86 media outlets and three individuals from speaking on these videos as far back as June 2023. The court had given the order on the grounds that “there is a threat of broadcasting, publishing and circulating such fake news, morphed photographs/video” against Revanna.
Gagging orders or gag orders are usually passed by the courts mostly against the mass media asking it not to discuss a certain topic in order to protect the rights of the person who has filed the suit. Such orders are passed before a lawsuit goes to trial wherein the court looks at evidence and examines witnesses to decide whether publication of the material will actually hamper the fair trial of the person.
But this could also impair free speech and public awareness. In a recent judgment, the Supreme Court held, “The grant of a pre-trial injunction against the publication of an article may have severe ramifications on the right to freedom of speech of the author and the public’s right to know.”
Despite many constitutional guarantees on freedom of the press—and some recent Supreme Court orders urging lower courts to not muzzle the media—such orders come to be passed regularly.
Moneycontrol explains the law that empowers courts to pass gag orders, when courts pass them and some recent instances of these.
What law empowers courts to pass gag orders?
Courts and governments are empowered to pass such orders. However, in most cases, they are passed by the courts under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908. While Rule 1 deals with temporary injunction, Rule 2 deals with permanent injunction. Pre-trial injunctions or suppression order are passed under Rule 1; they are then confirmed under Rule 2 after the trial is over.
State and central governments and the police also have powers to pass orders restraining the media from reporting certain things in the larger public interest. For instance, the Mumbai Police passed a gag order in 2020 prohibiting the circulation of fake news and content "derogatory and discriminatory towards a particular community" or "causing panic and confusion among the general public". This order was passed under Section 144 of the Criminal Procedure Code, 1973. Gag orders can also be passed if a writ petition is filed in the high court or Supreme Court, but this happens under exceptional circumstances.
However, such orders cannot be passed in a mechanical manner. High courts and the Supreme Court have from time to time passed judgments laying down criteria to issue orders that impinge on free speech.
“The test is to check if the publication will create a real and substantial risk of prejudice to fairness of the trial. The court has to consider if the publication is intended to impair the court’s impartiality or affect the ability of the court to determine true facts,” said Apeksha Lodha, partner, Singhania and Co.
According to Ankur Mahindro, managing partner, Kred Jure, “The legal jurisprudence on grant of media gag orders mandates that only in the rarest of rare cases can such an order be passed. The courts should be extremely circumspect about restraining media outlets from discussing a certain issue and/or reporting on any issue as the same is violative of the fundamental rights guaranteed by the Constitution of India.” He noted that courts tend to grant ad-interim ex-parte injunction only in cases where morphed videos are being circulated which, if not restrained, would have an irreparable impact on the fundamental right of privacy of the litigant.
Suvigya Awasthy, partner, PSL Advocates & Solicitors, said, “Plea relief of seeking directions against media houses and/ or journalists has been a prevalent practice in India.” He however noted that courts have been cautious whilst passing such blanket orders/ directions against reporters as a thin line separated violating a fundamental right of one party while protecting the same for another party.
What are some recent instances?
In 2014, the Delhi High Court issued a gag order against the media asking it not cover any news relating to allegations of sexual harassment against former Supreme Court judge Swatenter Kumar. The allegations were levelled by an intern.
In 2018, a special CBI court judge passed a gag order asking the media not to cover news relating to the alleged 'fake encounter' case of Sohrabuddin Sheikh. However, the Bombay High Court struck this order down shortly thereafter.
In 2019, Bharatiya Janata Party (BJP) leader and Bangalore South MP Tejasvi Surya obtained a temporary injunction from a local civil court restraining media outlets from publishing “defamatory statements” against him. However, the Karnataka High Court set it aside shortly thereafter.
In 2021, Bangalore North MP and former Karnataka chief minister Sadanada Gowda obtained a gag order from Bangalore City Civil Court restraining the media from publishing and circulating "false, baseless and reckless news" items against him.
Similarly, in 2021, six BJP ministers in Karnataka were granted a temporary gag order against 68 media outlets. They had filed a plea apprehending that media channels would play videos involving them after their colleague Ramesh Jarkiholi stepped down as the Karnataka water resource minister in the wake of television channels airing an alleged sex tape featuring him.
In January 2023, present Karnataka chief minister Siddaramiah obtained a stay order against the release of a book that allegedly contained defamatory passages about him. The court ordered the respondents not to publish, release, sell or display the contents of the book.
In March 2023, Bengaluru City Civil Court restrained 46 media houses from reporting on any defamatory opinion against BJP legislator Madal Virupakshappa and his son Prashanth Kumar, who had been accused of taking bribes.
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