Apex court muzzles a media silencing tool

Supreme Court of India.

On March 22, 2024, the Supreme Court (SC) handed down a brief — but important — judgment, restating some basic principles with respect to the right to freedom of speech and expression. The context was a defamation case against Bloomberg TV, its editor and certain journalists. Defamation cases against the media are, of course, common in India. Such cases, however — as with all civil cases — take a very long time to be decided. For this reason, much turns upon whether plaintiffs in defamation cases can persuade the court to grant an interim injunction, requiring that the allegedly defamatory material be taken down (in the case of online content) or expunged or not released (if it is physical content), pending the final determination of the suit. As the suit itself will not be determined for many years, this has the effect of killing the inconvenient piece or story.

It is a matter of some regret that, despite certain honourable exceptions, the courts have been far too quick to grant injunctions. This has especially been the case when proceedings have been brought by powerful and influential individuals, who can engage the best and highest-paid lawyers (a famous recent example was a biography of Baba Ramdev). This, indeed, was precisely what happened in the present case, where an ex-parte ad interim order (that is, an interim order passed without hearing the other party) was passed by a Delhi additional district judge, directing Bloomberg TV to take down a February 21 article published on its website, within a week. This order was subsequently upheld by the High Court (HC) as well.

The SC set aside the orders of the district court and the HC and vacated the injunction. In doing so, the court also — importantly — restated the core principles around judicial injunctions in the context of freedom of speech. While these principles are a part of settled law, the restatement is important, as far too often, they are honoured more in the breach.

The main principle is known as “the rule in Bonnard vs Perryman”, after the English case in which it first evolved. The logic of the Bonnard vs Perryman rule is that the appropriate remedy in case of a civil defamation claim is that of compensation, or damages (should the plaintiff succeed). In a defamation claim, therefore, an injunction — which would have the effect of taking the allegedly defamatory speech entirely outside the marketplace of ideas — is a disproportionate interim remedy, given that even if the plaintiff were to finally win, they would only be awarded financial compensation. For this reason, the rule in Bonnard vs Perryman states that ordinarily, in cases involving defamation and free speech, injunctions should not be granted. The only exception to this is when the defendant cannot muster up even a plausible case during the injunction hearing. If the defendant, however, is able to put forward a plausible defence, then the court will stay its hands, and let the defence be tested during the course of a full trial.

More than a decade ago, in a case involving litigation between Tata Sons and Greenpeace, the Delhi HC famously held that the rule in Bonnard vs Perryman ought to apply with even greater force in the context of a Constitution that explicitly protects the right to free speech. However, as we have noted, when it came to the daily practice of injunctions, this rule was not being followed. The SC’s clear restatement of the rule, therefore, is welcome. In the words of Chief Justice of India DY Chandrachud, “Courts should not grant ex-parte injunctions except in exceptional cases where the defence advanced by the respondent would undoubtedly fail at trial.” This will, it is to be hoped, be of use to journalists and writers, going forward.

In addition, in the Court’s order, Chief Justice Chandrachud also noted the increasing trend of SLAPP suits — that is, Strategic Litigation Against Public Participation — being deployed to silence dissenting or critical voices. Defamation suits — with their attendant claims for injunctions — are the primary examples of SLAPP litigation. As the Court, therefore, correctly noted, in such SLAPP suits, “the grant of an interim injunction, before the trial commences, often acts as a ‘death sentence’ to the material sought to be published, well before the allegations have been proven”. The court issued a salutary warning, therefore, to judges considering such claims in the future.

The proof of the pudding will, undoubtedly, lie in the eating: Far too often, even despite the SC laying down legal and constitutional doctrine, not much changes at the level of grassroots practice. However, given the clear and pithy nature of this order, it is to be hoped that it will provide a valuable arrow in the quiver of journalists and writers who find themselves resisting defamation and injunction claims, brought at the behest of powerful parties who are intolerant of criticism.

Gautam Bhatia is a Delhi-based advocate. The views expressed are personal

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