Freedom of Expression

What the Court Said While Lifting Injunction Granted to Jay Shah Against The Wire

“When the defendants have published the article on the basis of facts collected from a public record the same can be termed to be as enshrined in Article 21 of our Constitution.”

Jay Shah, Amit Shah

The court had originally granted Jay Shah an all encompassing injunction on October 12.

New Delhi: In lifting the ex parte injunction against The Wire for its story on Jay Amit Shah and his businesses, additional senior civil judge B. K. Dasondi of the Ahmedabad (rural) magistrate’s court made some sharp comments about the nature of freedom of expression and the potential damage to it. He vacated the original injunction, while imposing one caveat on The Wire – not to use the line “Narendra Modi becoming Prime Minister/elected as Prime Minister” in further stories or discussions based on the original October 8, 2017 story on the business affairs of Jay Shah.

Some pertinent excerpts from the judgement:

(6)           In response to the summons and notices, defendant no. 4 [Foundation for Independent Journalism] having appeared and have filed written statement/objections vide Exh. 22 and refuting the para-wise allegations made in the present application and the same was adopted by rest of the defendants. The defendants have contended that, right to freedom of speech and expression under Article 19(1) of the Constitution is entitled to protection and the same is not liable to be restricted upon a mere allegation of defamation. It is vehemently contended that only a clear, final, judicial finding that any publication constitutes defamation, it can constitute a ground enumerated in Article 19(2). The defendants have submitted that, there is as yet no finding of defamation with regard to the said defamation, no evidence has been led or judicial appraisal done of the allegation of defamation. The defendants have categorically asserted that, the publication of 8/10/2017, the subject matter of the suit, is based on verified official record, as admitted by the plaintiff himself. A perusal of the subject publication would show that it is based on records of the Registrar of Companies. It is also settled law that an injunction against publication will not be granted when the applicant for injunction has not proven or shown that the same is false. As is well established, that the relief of an ad interim injunction is not to be granted to a party, when the relief sought can be or is quantified in terms of damages. The plaintiff, by his own description, would fall in the category of a ‘public figure’. The ministry of corporate affairs maintains a website to enable public scrutiny of the filings of a corporate body. The article in question has only reported on these filings made by the plaintiff’s company Temple Enterprise, which law intends to make open to public scrutiny. It is also stated that, an injunction against future publication, the contents of which are yet to be published is completely impermissible for a conjectural basis for curtailing the freedom of expression under Article 19(1) is not permissible and have prayed to reject the present application with cost and also the ex-parte injunction granted earlier may please be vacated.

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(10)           Learned Adv. Nitya Ramakrishnan for Learned Adv. Y.H Motiramani on behalf of defendants have submitted written arguments vide Exh. 34 and Exh. 41 and in her oral arguments have argued at length submitting that, there is no right to reputation against truth or record and there is no right to unmerited reputation. Injunction including ad-interim temporary injunction against publication, against an article or story stands on a totally footing. Even in an ongoing suit for defamation, and even if the statements are defamatory, injunction will be refused if the defendant says that he will justify. Plaintiff will have to prove falsehood or give prima facie proof of falsehood to show that the defendant will never succeed in proving the truth. Even inaccurate or partially [inaccurate] statements will not be restrained or subject to an injunction. Verification does not always require getting the plaintiff’s version. Only a gist of the plaintiff’s version need be reported even when it is taken. Balance of convenience is legally as this danger to the freedom of expression and the citizen’s right to know is more important to protect than the reputation of an individual. Irreparable loss is always to freedom of expression and if plaintiff has claimed damages injunction will be refused as the loss has been quantified and thus irreparable loss is not to the plaintiff but to the defendant’s freedom of expression. Matters in public domain cannot be injuncted from publication, there is no claim of privacy against matters of public record. Comments or publication based on record cannot be injuncted once there is a public record then all are free to comment the same and free speech itself constitutes public interest. Learned advocate has vehemently argued that, future publication cannot be injuncted because what is written is yet to be known. It is entirely up to the author how the story or telecast is structured. Use of exaggeration or hyperbolic words is not defamation. Truth is not innuendo. Malice requires to show that the defendant published an untruth knowing it to be untruth. It requires material to show that no reasonable person would have made those comments. Learned advocate has further argued that, the plaintiff has obtained the loan from the different institutions like bank and IREDA and etc. and this is shown in the record of ROC. Defendants had asked the answers of the questionnaire sent by them and after the answers had been by the lawyer of the plaintiff, then the defendants have published the said article. When some facts are there on the public record, then there is no question of right to privacy. So there are no defamatory statements published by the present defendants and the injunction application of the plaintiff deserves to be dismissed and in support of these arguments have relied on the ratio laid down in the following decisions.

  1. 1994(6) SCC 632 R. [email protected] R.R gopal and others Vs. State of Tamilnadu and Ors.
  2. AIR 2002 Del 58 Khushwant Singh Vs. Maneka Gandhi
  3. 2011 (178) DLT 705 Tata sons ltd. Vs. Greenpeace International and Others.
  4. 2005(80) DRJ 74 Mothers dairy foods and processing ltd. Vs. Zee telefilms ltd.
  5. 2014(5) High court cases (Del) 172 Navin jindal and another Vs. Zee media corporation  and another
  6. ILR (1982) 2 Delhi 953 S. Charanjit Singh Vs. Arun purie & Anr.
  7. 1985(1) SCC 641 Indian Express newspapers (Bombay) Pvt. ltd. and Ors. Vs. Union of India and Ors.
  8. 2015 SCC (Bom) 4790 National stock exchange of India ltd. Vs. Moneywise media private ltd.
  9. 2015(2) Mh.L.J 390 Sanj dailylokopehar khamgaon & ors. Vs. Gokulchand Govindlal sancanda
  10. 2009 SCC (MP) 464, Dominique Lapierre and Ors. Vs. Swaraj Puri
  11.  AIR 2006 Del 300 Ram Jethmalani Vs. Subramaniam Swamy
  12.  2006 (2) L.W. 377 R. [email protected] R.R Gopal & Anr. Vs. J. Jayalalitha & Anr.
  13.  2017 SCC (Del) 12049 Dr Shashi Tharoor Vs. Arnab Goswami
  14.  2014 SCC (Bom) 1780 Essel Infra projects Ltd. Vs. Devendra Prakash Mishra and others.

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(17)           It is true to say that the plaintiff, as every Indian Citizen, is entitled to his good name and esteem and has a right to claim that the reputation of the plaintiff shall not be disparaged by defamatory statements without lawful justification. It is also right to say that the freedom of speech and expression is not to be exercised in a way so as to constitute an infraction of the law relating to defamation. As every individual possesses the freedom of speech and expression as enshrined in the Constitution, so also possesses a right to his reputation as well as right to privacy. I have given a thoughtful consideration, while deciding the present application, on the authority relied by the defendant in the case of Tata Sons Limited Vs. Greenpeace International reported in 2011 (178) DLT 705, wherein it is held that,

  1. Greenpeace India relies on the judgment of the Supreme Court reported as S. Rangarajan v. P. Jagajivan Ram, 1989 (2) SCC 574 to submit that terms and expressions, in a defamation case, are not to be seen in isolation of their context, and the Court must allow a certain latitude to the author or maker who is exercising his right to free speech or fair criticisms in regard to matters of public concern. Counsel urged that the importance of free speech or fair criticisms in regard to matters of public concern. Counsel urged that the importance of free speech in a democracy, in matters of moment and issues that concern the people, cannot be undermined, and was recognized long ago in England, in Bonnard v. Perryman, [1891] 2 Ch 269, where it was held that exceptional caution has to be exercised by the Court while exercising jurisdiction to interfere by way of injunction. Counsel emphasized that in the said decision, the Court highlighted that-

    “…The right of free speech is one which it is for the public interest that individuals should possess, and,…. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions…”
  1. The English common law precedent on awarding interim injunctions in cases of defamation is set out by the case of Bonnard (supra). In Bonnard it was decided that an interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level. The Court’s observations, widely applied in subsequent judgements are as follows:

“… The subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions… In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; not can we tell what may be the damages recoverable.”

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(18)           The plaintiff herein through the present suit have contended that the defamatory article produced vide Exh. 3/3 has been maliciously published by the defendant herein, thereby lowering the reputation of the Plaintiff in the eyes of public which has harmed and injured his reputation and also has invaded the plaintiff’s privacy. What would constitute privacy is decided in the case of R. [email protected] R.R. Gopal and Ors. Vs. State of Tamilnadu and Ors. reported in 1994(6) SCC 632, relied on by the defendant, wherein it is held that,

  1. We may now summarise that broad principles flowing from the above discussion:
    1. The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article-21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent-weather truthful or otherwise and weather laudatory or critical. If he does so, he would be violating the right to privacy, of the person concerned and would be liable in action for damages. Position, may however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
    2. The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are however, of the opinion that in the interests of decency (Article 19(2) ) an exception must be carved out to his rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/media.

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(19)           The defendant herein through their written statement has taken a plea of justification thereby stating that the said article published by them is not per se defamatory and the same is based on records of Registrar of Companies as well as on the replies sent by the plaintiff. It is true that the records of Registrar of Companies are mandatory filings of financial statements and are also accessible to the public at large. The plaintiff through the present suit has neither denied nor questioned the facts contained in the reports obtained through the Registrar of Companies and also has not objected about the data that has been published in the said article. It is not the case of the plaintiff that the data obtained is a misleading one and or the same is misrepresented by the defendants thereby depicting a false picture of the plaintiff company. The data thus revealed has to be taken as correct statements for profit and loss of the plaintiff company at this juncture unless the contrary is submitted. A true press is duty bound to narrate a clear picture of the facts. I would like to quote the decision of the Hon’ble Apex courts in the case of Swatanter Kumar Vs. The Indian Express Ltd. and ors., reported in 2014 (1) HCC (Del) 572 relied upon the plaintiff wherein it is held that:

  1. In the case of Surya Prakash Khatri vs. Madhu Trehan, 2001 (92) DLT 665, the Full Bench of this Court in para 23 of the judgment has held as under:
  1. It is thus needless to emphasise that a free and healthy press is indispensable to the functioning of a true democracy. In a democratic set up there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the Government and its functionaries. To achieve this objective the people need a clear and truthful account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their further course of action. The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. It has an educative and mobilizing role to play. It plays an important role in molding public opinion and can be an instrument of social change. It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the newspaper is to understand the proper feelings of the people and give expression to it; another is to arouse among the people certain desirable sentiments; and the third is to fearlessly express popular defects. It therefore turns out that the press should have the right to present anything which it thinks fit for publication. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of speech and expression would amount to an uncontrolled license.

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(20)           The plaintiff herein has also submitted that the defendants have willfully and malafidely ignored the reply sent by him through his lawyer i.e. document Exh. 3/2. However, considering the said article it cannot be said that the defendant’s have ignored the same as the article does contain the actual facts as narrated by the lawyer of the plaintiff all together with the data reflected through the Registrar of Companies. Another submission on behalf of the plaintiff is that unreasonable time to respond and not conducting further inquiry based on the response as to the correctness was given, however such an averment on behalf of the plaintiff cannot be accepted as the reply to the questionnaire was sent by the lawyer of the plaintiff, which itself is eminent that as a normal prudent person, plaintiff could avail the aid of professional persons for the same. Also when the reply depicted the correct picture of facts, the same was not required to have further inquiry on behalf of the defendants. The plaintiff through the present suit has averred that publishing of the said article has tarnished his image to the public at large with regards to his honesty however, the plaintiff has not mentioned as to what kind of damage or loss has been suffered by him rather what and how his image has been tarnished to ascertain the loss as claimed for. It is true to say that the reputation and public image of a person cannot be weighed or compared with amount of compensation or damage. But the plaintiff through the present suit has shown mere apprehension about future losses but have not narrated any instances for the same. When the defendant’s herein have published the said article on the basis of facts collected from a public record the same can be termed to be as enshrined in Article 21 of our Constitution. The same ratio has been held in the case of Reliance petrochemicals Ltd. Vs. proprietors of Indian Express News Papers reported in 1988 (4) SCC 592, relied on by the plaintiff, wherein it is held that:

We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broaden horizon of the right to live in this age on our land under Art. 21 of our Constitution. That right has reached new dimensions and urgency. That right, puts greater responsibility upon those, who take upon the responsibility to inform.

  • Anjan Basu

    Allowing for the rather unfortunate — sometimes cavalier — use of the English language and the typos that seem to mange to clutter all judicial pronouncements routinely, this is a clear enough verdict in favour of good sense and reasonableness. The loyal ( ‘mainstream’) media are, of course, gleefully reporting the caveat more than the essential verdict, but we should not grudge them that : aren’t they paid to do just that and nothing else? How do you bite the hand that feeds you? Meanwhile, The Wire’s many readers and all others who have not yet forfeited their common sense ( and basic decency) will celebrate this small ( is it really so small, considering the times we live in?) victory with justification.