[Harper Collins Case] After Parties Fail To Arrive At Mutual Settlement, Delhi HC Decides To Adjudicate On Merits

During the course of hearing today, Justice Waziri noted that 5,000 books had already been printed. Thus, he orally remarked that these many books "cannot be undone" and suggested the parties to arrive at a "mutual closure". However, after seeking instructions, Senior Advocate Devadatt Kamat, appearing for the respondent,  asked the Court to adjudicate on merits.

Kamat argued that the Court had to strike a balance between 5,000 books of a Publication House and the Reputation and Right to fair Trial of the Defendant/Plaintiff, who was co-convicted as Asaram's aide.

Yesterday, the Court had heard Senior Advocate Kapil Sibal for the publisher and Senior Advocate Devadatt Kamat for the respondent Sanchita Gupta for over an hour. The Court had inquired from Mr. Kamat if there is any Judgment on pre-censorship in cases of conviction.

Responding to this query today, Kamat referred to a Division bench Judgment of the Bombay HC in Mushtaq Moosa v. Govt of India where publication of a film, based on the book Black Friday, pending appeals filed by the Bombay blast accused, was restrained.

Reading out excerpts from the Judgment, Kamat said "Extreme proposition that judges are never influenced or impressed by extraneous publications is difficult to be accepted".

Kamat argued that release of the book will cause an irreparable damage to the Defendant/Plaintiff's reputation and will adversely affect her Right to a fair trial.

At this juncture, Sr Adv Sibal intervened and pointed out that Mr. Kamat had conveniently missed an important aspect of Mushtaq Moosa Judgment. He pointed out that the Bombay HC had passed the injunction order in the above case only until delivery of Judgment by the TADA Court.

"Film was permitted to be released until passing of Judgment. Where is censorship after conviction? Mr. Kamat has conveniently missed the operative part," Sibal argued.

He further submitted that he is not denying that the Respondent/Plaintiff has a right to reputation. He said that the book should be released and if the Plaintiff is aggrieved, she may file a suit for defamation. However, he added that he shall take the defence of Truth in those proceedings as the book was based on the facts disclosed in the conviction Judgment rendered by the Special POCSO Court, Jodhpur.

After that, the judge urged the parties to explore the scope and settlement and adjourned the hearing for sometime.

Later, the parties told the bench that settlement failed.

Justice Waziri has reserved judgment and the order is likely to be released on the HC website.

The book, alleged to be a true story of the facts surrounding the conviction of self-styled godman Aasaram Bapu was authored by Ajay Lamba, Additional Commissioner of Police, Jaipur and Sanjiv Mathur. It was scheduled to be released last Saturday.

The impugned order was passed ex-parte on September 4 by the Additional District Court, Patiala House in Delhi restraining its publication in a suit filed by Sanchita Gupta, who was convicted as an aide of the self-styled godman in a case related to rape of a minor. The Civil Court observed that the publication of the book could cause irreparable harm to the reputation of the plaintiff.

During the course of the hearing yesterday, Senior Advocate Kapil Sibal, appearing for Harper Collins, submitted that the law on ex-parte injunction against publication is that the plaintiff has to show utmost good faith. However, in the instant case, the plaintiff did not approach the court with clean hands, as the judgment of the trial court that convicted and sentenced her was not appended along with the plaint.

"What the Respondent/Plaintiff claims to be Defamatory, are observations made by the Court. They have suppressed material facts by not annexing the Judgment. On this ground alone, the application should be dismissed", Sibal argued. He pointed out that the High Court has only suspended the sentence and that the conviction is still in operation.

He further submitted that while passing the impugned order, the trial court fell into "serious error" in not considering the settled principles of law against pre-publication censorship which is unconstitutional as it is against the right to freedom of expression under Article 19 (1) (a) of the Constitution of India.

Sibal further submitted that the plaintiff approached the court on the last minute, just a day before the scheduled publication even though the publication was announced in media in the last week of July, and this factor should be held against them.

Senior Advocate Devadatt Kamat (assisted by Advocates Rajesh Inamdar, Naman Joshi and Karan Khanuja), appearing for the respondent/plaintiff, submitted that the matter was still sub-judice, and the publication of the book can cause prejudice to the appeal and tarnish her reputation.

"If tomorrow the Special Court Judgment is reversed by the HC, the book, standing with all its disclaimers, will be available in market. This will tarnish the reputation of Respondent/Plaintiff forever", Kamat submitted.

Kamat further submitted that the publisher should approach the trial court first, seeking vacation of the interim order by filing an application under Order 39 Rule 4 of the Code of Civil Procedure.

When Kamat submitted that the book has dramatized the events, Justice Waziri orally remarked, "There has to be some license for the writer to write in a particular way. It cannot be drab like recording evidence".

Kamat also referred to the order passed by the High Court against the movie 'Batla Hosue'. Justice Waziri replied that the said order was passed not on contest but after the film-makers voluntarily agreed to make changes.

Kamat next referred to an order passed against the publication of a documentary on Nirbhaya case. Justice Waziri replied that it was passed after the Delhi police took the stand that the publication could affect the trial, which was pending then.

Kamat also referred to the pre-publication restraint passed against Juggernaut from publishing a book on Baba Ramdev.

At this juncture, Sibal, saying that he had appeared in the Ramdev case, submitted that it was not a case of conviction and that it was passed after the court found that there were some misstatements made against him.

Sibal said that if the argument of the respondent is accepted, it would mean that even a judgment cannot be published or discussed.