L’affaire Tejasvi Surya: “Media isn’t losing its freedoms so much as surrendering its freedoms. As a group it is unwilling to challenge the restrictions being imposed on them”

The temporary injunction obtained by BJP candidate for Bangalore South, Tejasvi Surya, against 49 newspapers, news channels and digital platforms has met with a strange radio silence from the affected parties.

None of them have (so far) filed objections. No media body in Bangalore or elsewhere has thought it fit to react to such a brazen assault on media freedom.

One of the few who has stuck his neck out and called out the perfidy is Alok Prasanna Kumar, a Bangalore-based advocate and Senior Fellow at the Vidhi Centre for Legal Policy.

Here, Kumar, whose byline has adorned several publications, including the Economic & Political Weekly, discusses the case and its implications:

***

What was the first thought that struck your mind when you heard about the injunction order secured by Tejasvi Surya? 

“Here we go again.” 

What advice will you give the 49 media organs injured by the injunction? How should they react, legally and journalistically, in this and future cases?

As a lawyer, my advice to clients is always “comply with the order of the court. Please”. But in this case, there is no real way to comply with the order of the court. It is not one statement or one story that is being injuncted but everything “defamatory” about Tejaswi Surya.

Defamation is not something that is straightforward and objective (like name or identity of a sexual assault victim) but is a legal determination by court.

Legally and journalistically, media organisations should: a) continue reporting as always, making sure to stick to the facts; and b) take this up with the higher courts to restrain trial courts from passing such orders. 

Why do Indian courts, in Karnataka in particular, find it easy to issue open-ended, pre-publication injunctions, amounting to a gag order, despite precedents pointing to the patent untenability? Why is the lower judiciary increasingly contemptuous of media freedom?

It’s hard to say exactly why but I think it is an issue of judicial accountability. The first level of accountability is through appeal. Even if High Courts are willing to scrutinize such orders judicially, and overturn them quickly enough, it would prevent lower courts from passing such orders regularly.

The second level of accountability is through the administrative side—taking note of the kinds of orders passed by a judge when drawing up their disciplinary record. 

As to the second question, the lower judiciary takes its cue from the higher judiciary. The higher judiciary has itself been contemptuous of media freedom and has found ways and means to gag the media in matters it does not want public scrutiny in.

The higher judiciary, being in the stranglehold of upper caste, elite men, reflects their worldview on the media and accountability. So it’s no surprise that the lower judiciary also reflects this world view. 

The Twitter exchanges hinting at a #MeToo moment in Tejasvi Surya’s timeline have been deleted by the woman who put them up. Can deleted tweets still be a matter for a court to adjudicate against the media?

Yes, they can. If Tejaswi Surya’s team are affirming that the tweets have been actually put on Twitter, then the only issue is whether they are true or false. However, the court has uncritically accepted the claim that they are false. 

Should the private affairs of a public servant be up for media scrutiny in the time of elections? Should there be a “personal affidavit”, like educational and financial affidavits, at the time of filing nominations?

This is a tough question to answer! I honestly can’t draw a bright line between what is acceptable for media coverage and what is not. It is very case-dependent but I think some things are very clearly a no-no: children, health, marital status, sexual orientation, and gender. Obviously any criminal activity or dishonesty should be exposed but there’s a large grey zone which I can’t say for sure. 

As to personal affidavit – I don’t think so. Beyond the most basic, identifying information about a candidate, there is no need for a prospective voter to know personal information about the candidate. It might end up exposing innocent third parties to unnecessary public scrutiny.

Many of the impugned media houses had not published the dark side of the BJP’s candidate for Bangalore South. How does a blanket injunction work in instances like these?

I think the idea was to prevent them from doing so, if they chose to. But it has also ended up re-creating the Streisand Effect.

Tejasvi Surya, as advocate, had represented the fake news website Post Card News when its so-called editor had been arrested. What does that tell you about his attempt to stifle the media in such a loud manner?

As a lawyer he’s free to choose his clients and what he says on their behalf. As a potential public servant his attempt to stifle the media is extremely worrisome. 

Is the media increasingly facing a losing battle for its freedom, at the hands of the three pillars of a democracy? Does the reader/viewer care for the media’s rights any more in the social media age?

Media isn’t losing its freedoms so much as surrendering its freedoms. They (as a group) are unwilling to challenge the restrictions being imposed on them for whatever reason. Again and again, they’re leaving it up to the individuals in question or the media houses affected to challenge the actions of the government or the judiciary. 

I do think the average reader/viewer cares about media freedoms but there’s not much they can do if the media doesn’t care that much about media freedoms. 

Photograph: courtesy Alok Prasanna Kumar

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