On the Delhi High Court order in Swatanter Kumar's defamation suit and on the Karanjawala takedown notice issued to legallyindia

See http://www.legallyindia.com/201401234274/Bar-Bench-Litigation/pixellated-swatanter-kumar-notice

and 

http://www.legallyindia.com/201401174249/Bar-Bench-Litigation/swatanter-kumar-defamation-interim-injunction

My comments on the Delhi High Court order in Swatanter Kumar's case:

Para 53 wrongly states that the complainant had not initiated a civil or criminal case. Her writ petition in the SC constitutes appropriate legal proceedings and J. Manmohan Singh was made aware of these proceedings.

How did J. Manmohan Singh reach the conclusion that no cogent evidence has been produced with the complaint. The evidence will be produced before a Vishakha committee or other appropriate forum.

Para 59 - How is a complaint of sexual harassment pending before the Supreme Court a mere stray allegation?

The reason why there is confusion about whether injunctions b and c apply to third parties is because the second line of para 64 was altered by J. Manmohan Singh after the order was signed and read out in court. This alteration was at the instance of lawyers for Swatanter Kumar including A S Chandhiok.

Originally, para 64 of the signed order read out in court did not include or cover third parties. The words "and/ or any other person" were hurriedly added after Chandhiok suggested it and the manner in which these words were added resulted in this part applying only to direction a and not to b and c. I was present in court that day and this can be independently verified.

The way the order reads, directions b and c apply only to the defendants and not to third parties.

The direction against publishing a photograph would not prohibit a pixellated photo. Swatanter Kumar cannot be identified by anyone only from the pixellated photo. The familiarity with the photo is because several lawyers recognize that the source of the pixellated photo is Swatanter Kumar's profile picture on the SC website.

Para 66 of the order permits fair reporting of facts on the basis of true, correct and verified information.

The write-up by legallyIndia would fall within fair reporting of facts on the basis of true, correct and verified information and hence would fall outside the prohibition of directions a, b and c.

However, the order as it reads might arguably still prohibit publishing Swatanter Kumar's photo along with even permitted fair reporting if such reporting connects the plaintiff to the complaint which it is bound to do. This is why this direction is absurd and unconstitutional.

But overall, I think legallyIndia is safe.

Another notable thing is that on the day that J. Manmohan Singh pronounced the order, he did not sit in court until 1 pm. The order was reserved and was to be pronounced at 10.30 am the next day. The next day the judge did not sit until 1 pm when he came in, pronounced this order and adjourned for lunch.

Was this proper judicial conduct? I think not. The order if not ready could have waited another 24 hours, yet a retired SC judge got preferential treatment over several other litigants whose matters were not taken up the next day on this account.

The defamation case is not the main matter. The writ petition of the intern pending before the Supreme Court will have to be heard and I cannot imagine a scenario where the Supreme Court refuses to refer it to a committee based upon the Vishakha ruling. An inquiry into the allegations of sexual harassment leveled at Swatanter Kumar will follow. 

However, the danger would lie in the still anonymous intern being subjected to all kinds of pressure etc to give up her complaint. 

The Delhi High Court injunction does only four things - 

First no allegations can be reported without stating that these are allegations. 
Second - His photograph cannot be published. 
Third - offending content and photographs must be removed. 
Fourth - There appears to be a restraint on uploading "defamatory" articles. 

According to me there is no real injunction on the media under 1, 2 and 3. 

Number 4 is strange and legally unjustifiable - truth is a legal defence to a complaint of defamation, there is yet no judicial determination as to whether anything was actually defamatory, a prior restraint cannot cover defamatory content. 

Anyone can upload content on this issue which they are satisfied meets the test of being non-defamatory.