Injunction against publishing facts cannot be open-ended

Freedom of expression is itself in the public interest

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Injunction

A temporary injunction against publishing follow up stories on a subject, if left open-ended,
can assume the nature of a near permanent injunction.

Ahmedabad: An important legal-constitutional question, with serious implications for the media industry as a whole, has arisen in the Rs 100 crore civil defamation suit filed by Jay Amit Shah against The Wire over an investigative story which gave a factual account of how some of his businesses had grown 16,000 times after the Bharatiya Janata Party (BJP) government came to power.

A civil court in Ahmedabad gave a temporary (ad interim) injunction against The Wire prohibiting it from freshly reproducing or discussing further the original contents of the Jay Shah story. The Wire has challenged the ad interim injunction and arguments from both sides have concluded at the civil court in Ahmedabad.

The question is whether an ad interim (temporary) injunction against publishing follow up stories on a subject can become open ended and therefore assume the nature of a near permanent injunction. The lawyer for Jay Amit Shah, Nirupam Nanavati, argued that in money/property suits injunctions are granted and status quo maintained till the main suit is settled one way or the other. And the same would apply to the grant of injunction in the Jay Shah case. Nanavati was thus suggesting that the temporary injunction against further publication of follow up stories from the original investigation of Jay Shah’s businesses can be continued till the Rs 100 crore damages suit is settled.

“But the law is precisely the opposite,” argued Nitya Ramakrishnan, lawyer for The Wire. A claim of damages on that very ground disentitles him to an injunction, she said. Jay Shah cannot file a defamation suit and simultaneously seek an open-ended injunction preventing The Wire from bringing more facts to establish the truth of all the assertions in its investigations. Ramakrishnan further argued that Jay Shah had in the first place acknowledged in writing all the facts The Wire had published in regard to his business activities – turnover, profits/losses, loans – which were accessed from the public record maintained by the Registrar of Companies (RoC) under the Ministry of Corporate Affairs. The Wire fully published the reply of Jay Shah’s lawyer along with the original story where it was acknowledged that the facts and figures stated were not untrue.

At one stage, Jay Shah’s lawyer, Nanavati, sought to suggest to the court that the veracity of the figures quoted from the RoC records can be examined at the trial stage. To this Ramakrishnan’s response was one would for Jay Shah’s sake assume that his declaration to the RoC is true and authentic and if his own lawyer entertains doubts on that, it bodes ill for Jay Shah because mis-declaration before the RoC is an offence.

Of course, the main argument by Jay Shah’s counsel was that the injunction can be continued till the civil defamation case is decided. If the suit takes five years to be decided after elaborate examination of evidence and witnesses, the injunction against the publication of follow ups of the original story shall continue for five years! Can this be justified at all under our present constitution which guarantees freedom of speech and the citizen’s right to know, asked Ramakrishnan.

Ramakrishnan argued that when an interim injunction is being considered, the constitutional right to freedom of speech and expression stands on a much higher pedestal
than an individual’s reputation and privacy under Article 21. Indeed, there is no right of reputation against the truth and no right of reputation or privacy against matters of record.

Conjectural claims and allegations are not grounds on which freedom of speech can be restricted – under the constitution.

Ramakrishnan told the civil judge, “In law, an injunction against the right to freedom of expression stands on a reverse footing than money suit or a property suit. Temporary injunction cannot be given if the defendant says he will and can prove what he has stated is true. Here we have not only said we shall prove it but have shown the material we have used: RoC filings, their own reply to our queries in which they have admitted to the figures in the story.”

“There is no question of injunction because there is an unbroken line of judgments, from the Delhi, Madras and the Bombay high courts that freedom of speech shall not be restrained if truth is pleaded and material basis for the comment is shown. Supreme Court judgments have also said that matters of record will not be restrained,” she added.

“But most importantly, at the stage of interim injunction when there is the question of balancing two rights, the people’s right to know stands on a higher footing. Because
the law says freedom of expression is itself public interest, reflecting the citizens’ right to know,” Ramakrishnan argued.

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