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Guarding against insidious erosion

At a time when public officials are coming under closer democratic and public scrutiny, an insidious attempt to roll back press freedom was blocked by a little noticed judgment of Justice K. Chandru of the Madras High Court. In a salutary decision in a case brought to court by Union Communications Minister A. Raja, he has reaffirmed the principle that public officials cannot gag the media from reporting or commenting on their performance on the ground that such writings co uld be defamatory. In this case, the Tamil magazine Junior Vikatan had been running a series of reports on the Minister’s activities centring on the alleged irregularities in the allotment of radio frequency spectrum to mobile telephone operators and also on his wife’s business interests. The Minister sought an interim order barring the magazine from publishing “defamatory news items” and the high court, in the first instance, restrained it from carrying “articles of similar nature” without seeking a clarification from Mr. Raja. This surprising order lasted nearly three months before it was overturned by Justice Chandru.

Two fundamental principles of freedom of expression were involved in this case. The first is the absence of prior restraint on publication — as opposed to penalties after publication in case it turns out to be defamatory or otherwise offends the law —which has been a long established component of press freedom. The United States Supreme Court has ruled that prior restraints came with a heavy presumption against constitutional validity. It reasoned that while reports of “official malfeasance” would no doubt create a scandal, “the theory of the constitutional guarantee is that even a more serious public evil would be caused by authority to prevent publication.” The Supreme Court of India has also ruled in the landmark case R. Rajagopal v State of Tamil Nadu that there was no law empowering the state or its officials to impose prior restraint upon the press. The second principle involves the scrutiny of public officials, and the Supreme Court, following American rulings, has held that in their case even if the statements about them are not true they cannot claim damages unless it is established that they were made with a “reckless disregard for the truth.” This higher level of protection is not a licence to publish false statements about public officials. It merely reflects the importance of press and public scrutiny which ought not to be inhibited by the effort and the expense that establishing even the truth in court would entail. In the light of such well established principles it is disquieting that efforts are still being made to nibble away at press freedom even as it is gratifying that the Madras High Court would give no quarter to such attempts at political censorship.

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