Jay Shah defamation case: Not hearing parties in free speech cases ironical, impedes freedom of expression
Ex-parte orders like the one passed in Jay Shah defamation case against The Wire seems to be on the rise especially in cases related to freedom of speech
The right to free speech and the right to reputation have been locked in combat for a long time. Courts have tried to maintain the uneasy balance between the two by following the laws laid down. To do this, they usually act on a complaint filed against a published item and after listening to both the parties, decide on whether the offending item should be removed and what damages might be awarded.
Unfortunately, the courts seem to be digressing from this accepted norm.
The latest example of this came in the Jay Shah case (hereinafter “present case”) when an Ahmedabad court barred The Wire from publishing anything regarding the businesses belonging to Shah (interestingly, the article which is the basis of the case is still online). Firstly, this is a case of prior restraint (a discussion on that aspect available here). Secondly, the injunction was granted “ex-parte” which means the court did not hear The Wire before passing the order.
Those hoping that this was an anomaly and not part of a general trend are in for a disappointment as ex-parte orders seem to be on the rise especially in free speech cases. This is the second time The Wire has been hit by one after it was told to remove two articles involving Rajya Sabha member Rajeev Chandrashekhar. Baba Ramdev got one against Juggernaut Books to stop the publication and sale of a book on his life. Arindam Chaudhuri (of IIPM fame) in an impressive feat took out Outlook, The Caravan, Faking News, Kafila, The Indian Express, The Economic Times, Careers360, Firstpost and others with one Gwalior court’s ex-parte order.
Apart from these which made national news, there are many more. As The Hindu reported, there are about 45 cases of such orders against news media organisations in Karnataka alone.
The ex-parte order
The ex-parte order goes against the principles of natural justice. These principles are specific procedural rights which ensure the rule of law. These include the right to be heard, the right to an unbiased adjudicator and the right to a speaking (reasoned) order. The Supreme Court has time and again recognised their importance in ensuring the interests of justice.
The ex-parte order infringes a person’s right to be heard. However, it is by no means illegal as Indian law allows for it under Order XXXIX, Rule 3 of the Code of Civil Procedure, 1908. Importantly, it is not a rule itself but an exception to the general rule which mandates that the court must give notice to the other party before granting a temporary injunction.
In brief, these orders are only to be passed where an injunction would be rendered useless because of the delay caused by giving notice. Further, the court must also give reasons for passing the order ex-parte.
These orders are further governed by Supreme Court guidelines given in Kishorsinh Ratansinh Jadeja vs Maruti Corp, Morgan Stanley vs Kartick Das and Ramrameshwari Devi vs Nirmala Devi. The guidelines relevant for the present case are discussed in the following paragraphs.
An irreparable loss will be caused to the complainant: Reputations evolve over time. They are not set in stone and different actions influence them. Thus, no publication can affect a reputation permanently. If the same publication which defamed a person is directed to display an apology prominently on its platform, then that would certainly go a long way in restoring the person’s reputation.
In all the cases mentioned above, if the publications are found guilty there are various ways to ensure that they themselves work on correcting the wrong (via apologies, advertisements, etc). There is thus no irreparable loss to a person’s reputation. In the absence of this crucial ingredient, courts should not grant ex-parte injunctions.
The balance of convenience should be in favour of the complainant: This means that more inconvenience would be caused by granting the injunction than by not granting it.
In the present case, the court overrode The Wire’s Fundamental Right of Freedom of Speech by asking it to not publish any articles on the matter. The court did not know what articles The Wire might have published and how defamatory (or not) they might have been. This is pre-censorship and is against the law. Thus, there is a clear injustice in granting the injunction.
In other cases as well, once the article is published online, there is little the court or anyone can do to stop its spread. This was neatly illustrated by AltNews which pointed out that The Wire’s articles on Chandrashekhar have been archived on a Czech website. In such cases, it would be better to take the matter through proper proceedings and set an example, if need be, by imposing large fines on the defendant. An ex-parte order simply interferes with free speech without proper processes being followed.
Ex-parte orders are common in commercial cases, especially those within the ambit of intellectual property. Despite strong arguments against these, they do have a lesser downside as the injunctions can be removed without drastic effects. Ex-parte orders are also suitable in family law cases as the downside to not granting them is huge, with health and lives being involved.
However, in cases of free speech, there is less upside as in today’s information age there is little chance of stopping the spread of information. Further, as discussed above, the harm to reputation can be addressed by directing the defendant to prominently display an apology on their platform. Thus the balance of convenience is in the favour of the defendant.
The injunction should be for a limited period of time: The order in the present case will apply till the final disposal of the case. This is problematic as the Supreme Court has said in Ramrameshwari Devi that injunctions should be “limited to a week or so”. The apex court thus wanted a firm timeline in which an injunction is lifted. It had also noted that such orders "in some cases can create havoc and getting them vacated or modified… is a nightmare".
The present order does not follow this guideline. It also encourages other litigants to ask for such injunctions as it tilts the balance in their favour indefinitely without going through the proper processes.
Short notice must be given to the defendants and both parties must be heard: The Supreme Court also wanted these orders to not be passed as much as possible. The present case has been adjourned twice already, once because of the Diwali break and once because Shah’s lawyer didn’t appear in court. It seems that there was ample opportunity to hear the matter with The Wire’s lawyers present in court. In such circumstances, passing an ex-parte order is clearly in breach of the Supreme Court guidelines.
Where an injunction is granted, the court must mention that if the suit is dismissed, the complainant will pay full damages: This guideline seems to be laid down to ensure that an injunction is not sought frivolously. While a complete copy of the order is not available with Firstpost, no media report has mentioned the presence of such a direction by the Ahmedabad court. As such, this too is a violation of the Supreme Court guidelines.
If an ex-parte order is granted then the case must proceed as expeditiously as possible: The apex court wanted such cases to proceed as soon as the defendant appeared in court. However as discussed above, the defendant was in court at the time of the adjournments! Thus the granting of the injunction violates this guideline too.
It is ironical that a case involving free speech proceeded without hearing one of the parties. As discussed above, it is in violation of multiple Supreme Court guidelines and makes little sense in the present case as the issue has already been dissected left, right and centre.
Furthermore, these injunctions rarely have the desired effect even for the complainant.
When The Wire article was initially released it was read by a niche readership which follows the website. The defamation case catapulted it to national consciousness as almost every big media house covered some aspect of it. This is a textbook example of the Streisand Effect where attempts to suppress certain information leads to a much wider dissemination of said information.
As the law stands, people certainly have the right to drag a publication to court if they feel they have been defamed. However, any action after that must be taken only after proper processes have been followed and both parties have been heard. Otherwise, the Fundamental Right of Freedom of Speech is impeded and it also leads to a chilling effect, where others who are not involved in the matter are discouraged from writing on it due to fear of litigation.
The Supreme Court realised the pitfalls of the ex-parte order long ago. In the interests of free speech and a functioning democracy, it's time that its subordinate courts do so too.
The writer tweets as @utkarpretation
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