Summary
In an appeal from a Single Judge's order in a defamation suit by ANI against Wikimedia, a Division Bench of the Delhi High Court, holding prima facie that a Wikipedia article and talk page commenting on the Single Judge's order and on the Bench's own observations amounted to interference in court proceedings, violation of the sub judice principle and bordered on contempt, directed Wikimedia to take down the pages within 36 hours. The Supreme Court set aside that direction as disproportionate: courts must remain open to debate and criticism even on sub judice matters, postponement of publication is permissible only on the Sahara tests of real and substantial risk, necessity and proportionality, and it is not the court's duty to tell the media to delete content or take it down.
Issues
- Whether the High Court's direction to the appellant to take down/delete the pages and discussion relating to the pending proceedings and the Bench's observations was legal and proper.
- Whether hosting an article and discussion about a pending case and the court's observations amounted to interference in court proceedings, violation of the sub judice principle or contempt justifying a takedown order.
- Whether the appellant's status as an intermediary under the Information Technology Act, 2000 fell to be examined in the appeal.
Provisions considered
- Section 2(c), Contempt of Courts Act, 1971Criminal contempt covers publications that scandalise or lower the authority of a court, prejudice or interfere with the due course of a judicial proceeding, or obstruct the administration of justice. Where a litigant or the media scandalises the court or imputes motives to judges, courts are justified in initiating contempt and may direct postponement of publication, contempt being a reasonable restriction under Article 19(2); but the Court found no basis here for a direction to delete the pages. (¶¶ 27, 28, 30, 32, 33)
- Articles 19(1)(a) and 19(2), Constitution of IndiaFreedom of speech and expression, including the press's freedom and the public's right to know and receive information. Postponement orders restricting publication of sub judice matters are a balancing, preventive device that falls within the reasonable restrictions of Article 19(2) only when passed by courts of record on a showing of real and substantial risk of prejudice, for a limited duration, and subject to necessity and proportionality. (¶¶ 22.1, 23.1, 23.2, 23.3, 24, 25, 28, 30)
- Article 21, Constitution of IndiaThe right to know is part of the right to live under Article 21, and access to justice flowing from Article 21 is meaningful only if the public has access to court proceedings; freedom of expression is integral to a dignified life. These principles informed the Court's view that open justice and public debate must not be stifled by takedown directions. (¶¶ 22.1, 24, 25)
- Section 2(1)(w) read with Section 79, Information Technology Act, 2000The appellant contended it was an intermediary providing only technical infrastructure and not liable for third-party content. The Court declined to examine this contention since it may have a bearing on the pending suit. (¶¶ 15, 32)
Held
- Under Sahara India Real Estate v. SEBI, an order postponing publication of matter relating to a sub judice case is a neutralising, preventive (not punitive) device to balance freedom of expression against the fairness of trial. It may be passed only where there is a real and substantial risk of prejudice to the fairness of the trial or the proper administration of justice, must satisfy the twin tests of necessity and proportionality, should be for a limited duration without disturbing the content of the publication, and the burden lies on the applicant to demonstrate the risk. (¶¶ 23, 23.1, 23.2, 23.3)
- Open justice is the cornerstone of the judicial system: trial subject to public scrutiny acts as a check against judicial caprice and builds public confidence (Naresh Shridhar Mirajkar; Swapnil Tripathi). The right to know and receive information is a facet of Article 19(1)(a), and access to justice under Article 21 is meaningful only with public access to proceedings. Judges may not like spoken or written words, but it is the courts' duty to uphold the fundamental right under Article 19(1)(a) and they must not be seen to regulate or stifle free speech (Imran Pratapgadhi). (¶¶ 24, 24.1, 24.3, 24.4, 25, 30)
- The contempt jurisdiction must be exercised with a wise economy of use (In Re S. Mulgaokar): fair, even fierce, criticism of judges is not a crime but a necessary right; the benefit of doubt is to be given generously; the media should have free play within responsible limits even when its focus is the court; judges should not be hypersensitive and should deflate vulgar denunciation by dignified bearing; only when an attack is scurrilous, intimidatory or malicious beyond condonable limits should the strong arm of the law strike. Preventive injunctions against the press are justified only where the apprehended danger to the administration of justice is real and imminent (Reliance Petrochemicals). (¶¶ 22, 29, 29.1, 29.2, 29.3)
- Courts, as public and open institutions, must always remain open to public observation, debate and criticism and should welcome constructive criticism; every important issue needs to be vigorously debated by the people and the press even if it is sub judice. If a publication scandalises the court and a case of contempt is made out, courts should take action, but it is not the duty of the court to tell the media 'delete this, take that down'. Introspection through robust debate is key to improving the judiciary, and the judiciary and the media, both foundational pillars of democracy, must supplement each other. (¶¶ 30, 31)
- Without examining the appellant's contention that it is an intermediary under Section 2(1)(w) read with Section 79 of the Information Technology Act, 2000 (which may bear on the pending suit), the Court held that the Division Bench had reacted disproportionately in issuing the takedown directions, which could not have been issued. (¶¶ 32, 33)
Result
Appeal allowed. The directions in paragraph 5 of the Delhi High Court Division Bench's order dated 16.10.2024 in FAO(OS) No. 146 of 2024, requiring the appellant to take down/delete the pages and discussion, set aside. No order as to costs.