IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.07.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU O.A.NO.420 OF 2009 and APPLICATION NO.2919 OF 2009 IN C.S.NO.366 OF 2009 1.A.Raja 2.M.A.Parameswari Both residing at No.3/87, South Street, Vellore Village, Perambalur Village and District .. Applicants in OA No.420 of 2009 and Respondents 1 and 2 in A.No.2919 of 2009 Vs. 1.P.Srinivasan Publisher & Printer of Junior Vikatan, Vasan Publications Private Limited, No.757, Anna Salai, Chennai-600 002. 2.K.Ashokan, Editor, Vasan Publications Private Limited, No.757, Anna Salai, Chennai-600 002. 3.Saroj Ganpath, Chief Reporter, Junior Vikatan, No.757, Anna Salai, Chennai-600 002. .. Respondents 1 to 3 in OA No.420 of 2009 and Applicants in A.No.2919 of 2009 4.Prakash Jawadekar No.521, V.P.House, Rafi Marg, New Delhi-110 001. .. Respondent No.4 in OA No.420 of 2009 and Respondent No.3 in A.No.2919 of 2009 OA No.420 of 2009 is filed seeking to grant an order of ad interim injunction restraining the respondents 1 to 3/defendants 1 to 3, their men, agents, staff, subordinates or any person claim through or on behalf from in any way printing, publishing and circulating the defamatory news items and the photographs of the applicants/plaintiffs family or publishing any caricature or fudged photographs of mine or the photographs of the applicants/plaintiffs minor daughter in their bi- weekly magazine "Junior Vikatan" in any manner causing damages to the reputation of the applicants/plaintiffs without seeking any clarification from the applicants/plaintiffs. A.No.2919 of 2009 is filed seeking to vacate the order of interim injunction granted on 28.4.2009 in OA No.420 of 2009. For applicants/ plaintiffs : Mr.V.T.Gopalan, SC for Mr.P.Wilson Associates For respondents /defendants 1 to 3 : Mr.R.Yashod Vardhan, SC for M/s.R.Sunilkumar & Sundar Narayan - - - - ORDER The opinion of Justice Goldberg, with whom Justice Douglas of the U.S. Supreme Court had agreed, gave their concurring opinion in the Sullivan's case (New York Times Vs. Sullivan, 376 US 254), which will set the tone for a decision in this case. This judgment was quoted with approval by Courts in India. Their opinion on libel action of public figures may be reproduced below:- "... In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. ... The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel. ... In a democratic society where men are free by ballots to remove those in power, any statement critical of government action is necessarily "of and concerning" that governors and any statement critical of the governors' official conduct is necessarily "of and concerning" the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution." (Emphasis added) 2.Commenting on the Sullivan's case, Chicago Law School Professor of Jurisprudence Cass R.Sunstein, in his article "A New Deal for Speech" (Democracy and the Problem of Free Speech (New York Free Press, 1993)), wrote as follows:- "It is striking that in Sullivan, the lower court held that the common law of tort, and more particularly libel, was not state action at all, and was therefore entirely immune from constitutional constraint. A civil action, on this view, involved a purely private dispute. The Supreme Court quickly disposed of this objection, as seems obviously right. The use of public tribunals to punish speech is conspicuously state action. What is interesting is not the Supreme Court's rejection of the argument, but the fact that the argument could be made by a state supreme court as late as the 1960s. How could reasonable judges perceive the rules of tort law as purely private?" 3.The present suit is filed by the two plaintiffs, who are also husband and wife. The first plaintiff is presently a Cabinet Minister holding the Heavy Industries Portfolio and former Union Minister for Communication and Information Technology. The second plaintiff claims to be enrolled as a bar member. The suit is filed for claiming damages of Rs.One Crore from defendants 1 to 4 to the first plaintiff and Rs.25 lakhs to the second plaintiff together with interest at the rate of 18% for having carried out defamatory publications in the bi-weekly "Junior Vikatan" published by the first respondent in their various issues dated 16.4.2008, 19.10.2008, 19.11.2008, 26.11.2008, 03.12.2008 and 24.12.2008. 4.Apart from the claim for relief of damages, the suit also prayed for a permanent injunction restraining the defendants 1 to 3 from printing, publishing and circulating the defamatory news items and photographs of the plaintiffs family for publishing any caricature and fudged photographs of the first plaintiff or the photographs of the plaintiffs' minor daughter in the Junior Vikatan, thereby causing damages to the reputation of the plaintiffs and without seeking clarification from the plaintiffs. The suit was presented before this court on 22.4.2009 and was admitted on 27.4.2009. Pending the suit, an interim relief was sought for, which has been noted elsewhere. 5.By an interim order dated 28.4.2009, this court after holding that there was a prima facie case restraining respondents 1 to 3 from carrying out of articles of similar nature and photographs of the applicants' family members, including their minor daughter without seeking any clarification from the applicants/plaintiffs. This injunction was restricted to last till 15.6.2009. However, the matter came to be listed before this Court on 8.7.2009., when the respondents 1 to 3 took out Judges summons in Application No.2919 of 2009 for vacating the interim order. When the matter came up on 8.7.2009, the counsel for the plaintiff sought for time to file a reply affidavit and for extension of the interim order pending final orders. The same was granted by this court on that day. Subsequently, the applicants have also filed a reply affidavit, dated 12.7.2009. 6.The case of the applicants is that the Junior Vikatan published by the first respondent, has been continuously publishing news items and self write ups alleging irregularities in the conduct of the applicants. They were constantly defaming them with baseless and false allegations. Inspite of the clarification by the Department of Telecommunication on the 'Spectrum issue', the respondents were bent upon harassing them with frivolous and vexatious defamatory articles and write ups. Such articles were published with extraneous considerations and to satisfy their political opponents and for boosting the sale of the magazine. It was also alleged that the respondents have failed in their primary duty of verifying the veracity and correctness of the statements before publishing. The photographs which accompanies such write ups were in poor taste and there has been a fudging of the photographs in the cover page of the magazine, dated 20.4.2008. In the very same issue, the family photographs of the plaintiffs along with their minor daughter was also published, which had not only put them to embarrassment, but also violated their right to privacy. With reference to the the alleged connection of the applicants with M/s.Green House Promoters Private Ltd. and M/s.Equaas Estates Private Limited, the transactions were straight forward and the publications made in this regard were invented, false, frivolous and made with mala fide motives. 7.It was also stated that because of the general elections to the parliament to be held during May, 2009 and the first applicant being a DMK party candidate for the Nilagiry Parliamentary constituency, there has been conspiracy to bring out various defamatory articles. Such articles were published without any prior verification. The respondents should be restrained from making any future publication. Any such allowance in this regard will hamper his prospects of his getting elected. Therefore, both on a prima facie case and on balance of convenience, an order of restraint should be passed. 8.By virtue of the interim order, the applicants were successful in preventing the magazine from publishing any articles. It is also now made known that the first applicant has got elected and had become a cabinet Minister having the Heavy Industries Portfolio. 9.In the counter affidavit filed by respondents 1 to 3 dated 29.06.2009, it is asserted by the respondents, that the news items published by the Junior Vikatan will show that they have commented on the news concerning the acts and conduct of the first applicant in the discharge of his public duties as a Union Minister of Communication and Information Technology as well as the position held by the second applicant in the two companies referred to above. There was no comment on the private life of the applicants. It was also stated that the respondents have published the news based on news and proceedings in the parliament in the public domain and also on the basis of the documents that the second applicant held the position of the Director during the time the spectrum space was allotted to the company. It was also stated that the act of the respondents are not even remotely categorized as defamatory. 10.It was further stated that the Ananda Vikatan a Weekly magazine of the same group was founded in the year 1926 and during its 83 years of existence, several leading personalities were associated with the magazine. The 'Junior Vikatan' published by the same group had strived to achieve excellence in the field of journalism and never resorted to sinister methods for the sake of increasing circulations. The counter affidavit elaborately dealt with the basis of which such write ups were published. It is unnecessary to reproduce the same as such defence will be put before the trial. Even on the publication of the photographs in the cover page as well as in its inner pages, it was stated that it was not done with a view to cause embarrassment or malign the family. The family photograph published in the weekly was taken in a public function held that JK Mahal at Perambalur, which was organized to celebrate the electoral victory of the first applicant in May, 2004 assembly elections. The family members had happily posed for the media photographs. 11.With reference to the allegation that a response sent by the second applicant through e-mail was never received by the magazine. The e-mail ID given in the affidavit is not the e-mail ID of the magazine. When a denial was made by M/s.Equaas Estate Private Limited, a corrigendum was promptly published by the magazine in its issue, dated 15.2.2009. It was also stated that the respondents have fairly commented on the issue regarding improper allocation of 2G spectrum services by the Government of India and the people of India have a right to be informed about the same. 12.On the question of prior restraint, it was stated that there was no allegation on the private life of the applicants and no right of privacy of the applicants were violated. It is fairly asserted that the articles published by the Junior Vikatan constitute fair and bona fide comments on a matter of national interest. Material facts were truly stated in the articles and it was published bona fide. The articles were guided by principles of objectivity and fairness. It is also submitted that several other newspapers and magazines in India had carried such stories and the issue has become a topic for a nation wide debate. 13.It is in the light of the rival submissions, the contentions of the parties will have to be considered. Before Mr.V.T.Gopalan, learned Senior Counsel for the applicants had advanced his arguments, Mr.R.Yashod Vardhan, learned Senior Counsel for the respondents 1 to 3 fairly stated that though there was no illegality in publishing of the family photographs including the minor daughter of the applicants, the Junior Vikatan had undertaken that in future, they will not publish the photographs of the applicants' minor daughter and hence this Court's attention need not be vexed on the question of publication of the photograph of a minor child. The prayer made in this regard can be closed. 14.Mr.V.T.Gopalan, learned Senior Counsel submitted that the right of privacy of any person is sacro sanct and therefore, no amount of press freedom can intrude into the private lives of individuals. He also stated that the injunction granted earlier was only on the basis of a prima facie opinion and there is no necessity to vary the same. He also referred to the Division Bench judgment of this Court in R.Rajagopal's case reported in 2006 (2) MLJ 689, wherein this court also granted a restraint order and demanded submitting of articles for prior verification. He also referred to the reply affidavit filed by the applicants, dated 12.7.2009 and stated that a report by another newspaper did not give rise to the respondents to reproduce the same in their magazine with imputations so as to defame the applicants. There was no reasonable verification about the truth and veracity. The issues published are not social issues and it affects the rights of the applicants. It was also submitted that a challenge to the policy in the allocation of spectrum was pending in a public interest litigation before the Delhi High Court. When the fourth respondent interview was quoted in the magazine, no clarification was sought from the applicants. Though the fourth respondent is a Member of Parliament, he belonged to the BJP party. Since no clarifications were received from the two companies referred to above, the articles cannot be said to be based on any objective motive. The learned Senior Counsel also stated that the respondents have not stated that what was written was truth. The tenor of an article must be to find out the truth and not to publish some other reports so as to further defame any person and call it as truth. There must be a duty to make investigation about the veracity of such publications. He also referred to paras 10 and 11 of the plaint for justification in the grant of a prior restraint order. 15.In reply, Mr.R.Yashod Vardhan, learned Senior Counsel appearing for RR1 to 3 contended that the issue relating to the damages claimed to be contested by them in the trial and the present issue related to the prior restraint on the magazine. If granted it violates the fundamental right of the respondents granted under Article 19(1)(a) of the Constitution. He also stated that the intention of the applicants to get a gag order is to restrain the magazine from publishing any news item during elections and he has also succeeded in silencing future publications. Therefore, a great damage has been done to public good by preventing the magazine in bringing out issues on current affairs, which have a bearing on the conduct of the applicants. The applicants have not made out any case for prior restraint and the issue of the truth or veracity of the published items will have to be relegated to the main suit. 16.In this context, it is necessary to refer to certain decisions of the Supreme Court and of this court, which may have bearing on the relief claimed by the applicants. 17.Speaking about the freedom of the press, the Supreme Court vide its judgment in Odyssey Communications Pvt. Ltd. Vs. Lokvidayan Sanghatana and others reported in (1988) 3 SCC 410 has observed in para 6 "Freedom of expression is a preferred right which is always very zealously guarded by this Court." 18.While reiterating the same principle, the Supreme Court in its judgment in S.Rangarajan Vs. P.Jagjivan Ram and others reported in (1989) 2 SCC 574 has held as follows: "45.The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg"." (Emphasis added) 19.The Supreme Court vide its judgment in Indian Express Newspapers (Bombay) Private Ltd. and others Vs. Union of India and others reported in (1985) 1 SCC 641 had laid down the primary duty of the Courts is to invalidate all laws and administrative actions which interferes with press freedom, thereby interfering with constitutional freedoms. The following passage found in para 32 in the judgment may be extracted below:- "32.In today's free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in newspapers have to be critical of the actions of Government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments naturally take recourse to suppress newspapers publishing such articles in different ways. Over the years, Governments in different parts of the world have used diverse methods to keep press under control. They have followed carrot-and-stick methods. Secret payments of money, open monetary grants and subventions, grants of lands, postal concessions, Government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils etc. constitute one method of influencing the press. The other kind of pressure is one of using force against the press. Enactment of laws providing for pre-censorship, seizures, interference with the transit of newspapers and demanding security deposit, imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier etc. are some of the ways in which Governments have tried to interfere with freedom of press. It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it. It is, therefore, the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate." (Emphasis added) 20.While going through a news item, the courts have emphasized the culture of "responsible reading". The Supreme Court vide its judgment in Ajay Goswami Vs. Union of India and others reported in (2007) 1 SCC 143 had dealt with such an issue and the passages found in paras 78 and 79 may be extracted below:- "78.Be that as it may, the respondents are leading newspapers in India and they have to respect the freedom of speech and expression as is guaranteed by our Constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic set-up. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. ... 79.We are also of the view that a culture of "responsible reading" should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that a publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which are not conceived to be conveyed through the picture or the news item." (Emphasis added) 21.In these days of fundamental Right to Information, the Supreme Court in its judgment in Union of India Vs. Association for Demoratic Reforms and another reported in (2002) 5 SCC 294 upheld an order of the Election Commission of India to make the candidates in an election to disclose all vital informations regarding their life to the voters so that there will be purity in election. The following passage found in para 22 of the judgment may be reproduced below:- "22.For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote for. In our opinion, the decision of even an illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens  voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided  its result, if pending  whether charge is framed or cognizance is taken by the court. There is no necessity of suppressing the relevant facts from the voters." (Emphasis added) 22.After summarising all the leading cases (both Foreign and Indian Courts), a division bench of this Court presided by A.P.Shah, C.J. (as he then was) in its judgment in R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and another Vs. Ms.J.Jayalalitha and another reported in (2006) 2 MLJ 689 laid down the parameters of a prior restraint orders to be given by