On September 27, the Delhi High Court passed an interim order restraining the Aam Aadmi Party and five of its office bearers from posting defamatory content about Delhi Lieutenant Governor Vinai Kumar Saxena.
The case related to the allegations by AAP and its office bearers that Saxena had engaged in corrupt practices while he was chairman of the Khadi and Village Industries Commission to launder and exchange demonetised currency notes valued at Rs 1,400 crore.
The court also asked the party and social media platforms to take down these accusations about the Bharatiya Janata Party appointee from social media sites.
This is only the latest of several gag and takedown orders in recent years passed in favour of politicians – many of them from the Bharatiya Janata Party. Legal experts have been critical of such orders as they prohibit speech, often at the first hearing of the case.
Such interim orders have been passed as an interim measure, without examining the facts of the case in detail. However, since cases often drag on for years, these orders stays in effect for a long time.
In the Saxena case, the court undertook a preliminary examination of the material AAP had relied on to justify its allegations, such as first information reports and legal orders, It found that the corruption claims had not been substantiated. It said that the statements had been “made in a reckless manner, without any factual verification”. If this is not stopped, the court said, it would lead to “grave and irreparable” injury to Saxena’s reputation.
The effect of this order is two-pronged. First, it takes down the statements made by AAP and its office bearers so far, and second, it acts as a prohibition against them from making similar claims in the future. The order also gives Saxena the liberty to provide links of AAP’s allegedly defamatory posts to social media companies to have them deleted.
Similar orders have been given in several recent cases involving BJP politicians.
“There have been multiple instances where people associated with the party in power across states have received favourable orders,” said Prasanth Sugathan, legal director at SFLC.in, a digital rights organisation that tracks free speech violations in India.
But he added that since the data available is not exhaustive, it is difficult to make generalisations. “However, these trends are more prevalent at the level of lower courts,” he said.
In July, the Delhi High Court ordered Congress leaders Jairam Ramesh, Pawan Khera and Neera D’Souza and social media websites to take down statements about BJP leader Smriti Irani and her daughter. The Congress leaders alleged that there were irregularities at a restaurant in Goa that they claimed was owned by Irani’s family.
The previous year, between March and August 2021, at least eight BJP politicians from Karnataka had obtained interim injunctions against media houses prohibiting them from publishing defamatory material about them, according to TheNewsMinute. There are at least five more instances since 2014 in which the lower courts in Bangalore had given such orders in favour of BJP leaders.
These orders are general in nature and often passed ex-parte – without the other side being present for hearing. For instance in July 2021, a Bangalore civil court issued an ex-parte order barring 70 media houses from publishing “false, baseless and reckless news items” about BJP minister Sadananda Gowda, after the press reported that Gowda had made remarks critical of senior BJP leaders.
Also, in July 2021, the Delhi High Court ordered Trinamool Congress politician Saket Gokhale to take down and not post any “defamatory or scandalous or factually incorrect tweet” about BJP minister Hardeep Singh Puri and his wife Lakshmi Puri. Gokhale had alleged corruption in property transactions involving Lakshmi Puri.
Previously, in February 2020, a district court in Delhi passed an interim order asking media houses to take down posts relating to sexual harassment allegations against BJP leader Swapan Dasgupta’s son.
In sharp contrast to these cases, in March, the Delhi High Court refused to grant interim relief to AAP leader and Delhi Transport Minister Kailash Gahlot for corruption allegations made by BJP MLA Vijender Gupta regarding the procurement of 1,000 buses. The court said that both Gahlot and Gupta were public figures and MLAs and the Opposition had the right to question the government. Gupta’s comments were made on the “discharge of public functions” by Gahlot and were not personal attacks, the court said. Gupta questions about the bus procurement process in the Delhi Assembly had not been answered, it said.
Further, the court held that there were inquiries by the Central Bureau of Investigation and Delhi’s Lieutenant Governor, giving Gupta reasonable grounds to allege corruption.
“‘Public figures’ are subjected to closer scrutiny” and negative comments against them cannot be banned, the court stated. It also said that any restraint also cannot be ordered as the court does not know if Gupta’s future statements would be defamatory.
However, in the Saxena case, when AAP drew attention to the Gahlot matter, the court said that the comments about Saxena were not about his “official duties as Lieutenant Governor” whereas the allegations against Gahlot were in his “capacity as a minister”.
Several lawyers criticised this line of reasoning. “This is a specious distinction,” said senior advocate Sanjoy Ghose. The Khadi and Village Commission is a government body, he noted, and the chairman holds a public post.
“So if the parameter is that those who are in a public post have to have a thicker skin in the interest of accountability then the same logic should apply not just to ministers and MPs, but also to someone who is the chairman of the Khadi Commission,” he said.
The reasoning followed in these cases is not consistent, lawyers argued. “You will find some legal precedents saying that you are a public figure, and therefore deserve brickbats with bouquets whereas other cases will say that you should not say something damaging about a high functionary,” said Naman Joshi, an advocate who deals with defamation cases.
While different benches may take different views of a situation, lawyers argue that the law must be applied uniformly. “If you ask me, it is the duty of elected representatives to point out something of public importance to anyone,” said advocate Anupam Srivastava, who represented AAP in the Saxena case.
Legal experts say that such interim orders to take down content from the internet and asking Indians to refrain from speaking against those in power have become the norm.
“Courts find it more convenient to block a webpage or social media updates [at the interim stage] than to let it run,” said Tanmay Singh, an advocate with digital rights body Internet Freedom Foundation.
These orders are meant to be used as an exception. “However, it is one of the cases where the exception has become the norm,” said advocate Vrinda Bhandari, who works on civil rights cases.
Experts have also argued that these orders go against the law since in civil cases the courts should only grant compensation after the trial is concluded.
In rare instances, however, higher courts have overturned these gag orders. In other cases, these interim orders often end by being in force for a long time, since the final decisions take time. “Given the pace of Indian courts, an injunction is effectively a death sentence,” wrote legal commentator Gautam Bhatia.
Said Bhandari, “It is important that the [interim] order either gets confirmed or vacated in a short period of time.”
Politicians frequently tender apologies and settle the matter before it is finally decided. Recently, the Delhi High Court observed that defamation cases involving politicians are “only posturing” and often end up in settlement.