On October 12, an additional senior civil judge in Ahmedabad issued an ex-parte order against publishers of the news website The Wire in a defamation case filed by Jay Amit Shah, a businessman and the son of Bharatiya Janata Party president Amit Shah.

The case was moved in response to a report by The Wire on Jay Amit Shah’s business operations, which, the news website said, established a multifold increase in the turnover of a company he owned after the BJP came to power at the Centre.

In the order, the court restrained The Wire from using the article directly or indirectly to produce any fresh content. In response, The Wire said in a statement on Monday that it will challenge the civil court order legally.

This is not the first time in recent months that a civil court had gone ahead and passed an ex parte interim injunction to restrain publications. An ex-parte injunction is an order issued without hearing the opposing parties.

On August 4, a Delhi court had issued an injunction restraining the sale of a book on yoga guru Ramdev, after he alleged that its contents were defamatory.

Written by Priyanka Pathak-Narain and published by Juggernaut, the book traced the early days and rapid rise of Ramdev, now the brand ambassador of the Rs 10,000 crore Patanjali group.

In a statement issued days later, the publisher said the book was a serious work of journalism that involved over 50 interviews, including that of Ramdev. The tapes of the interviews with Ramdev, it said, had been authenticated by a forensic lab. “We stand by our book, will defend the case and will move the court to vacate the injunction,” the statement added.

These cases have returned into limelight the question of “prior restraint”, where one person’s freedom of expression is curbed to protect another’s right to reputation.

Prior restraint

The law pertaining to prior restraint has a long history in India. Primarily, a case of this nature involves a clash between the right to freedom of expression and the right to reputation, which the courts have read into the right to life. Reputation, the courts have held, is important for living a dignified life.

P Wilson, a former additional solicitor general, said injunction orders of the kind given in the Ramdev case happen “almost every day”. If the court finds that, prima facie, the person’s reputation could be irreparably damaged by the publication of material that may not be true, Wilson explained, it has the power to issue such restraint.

Wilson has represented a similar high-profile case. In 2009, he appeared for A Raja before the Madras High Court, seeking to restrain a Tamil magazine from publishing material from then Union telecom minister’s private life. The court granted it.

Wilson said once an ex-parte order is issued, the case should be expedited and the other side should be heard as soon as possible.

Although ex-parte orders are legally sound, the Supreme Court has come down heavily on their misuse in the past. In Ramrameshwari vs Nirmala Devi, 2011, the court laid out guidelines for issuing such orders. It said:

  “The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement.”  

The order passed on Ramdev’s petition does not contain a time limit for the injunction. In The Wire’s case, the injunction will stand till the final disposal of the petition, unless a higher court intervenes in the publisher’s favour.

Public vs Private

The Supreme Court has also made a clear distinction between a public person or official and a private person when it comes to matters of privacy. Since biographies delve into a person’s private life, the right to privacy of a private individual is held at a slightly higher position than that of a public personality. The courts have held that a person in public life should be ready for public scrutiny of his life. “There is no law empowering the state or its officials to prohibit, or to impose a prior restraint upon the press/media,” the court reiterated in R Rajagopal vs State of Tamil Nadu, 1994. The case stemmed from the government’s attempt to stop publication of the autobiography of the serial killer Auto Shankar.

In case of a private person, the courts have said that prior permission may have to be sought to publish content that is not already part of public record.

In the Ramdev case, the author’s assertion that the book largely draws on information that is already in public domain is bound to be used as a defence when the proceedings begin. The Wire article on Jay Amit Shah also derives its information from public records, especially his company’s statutory filings.

K Chandru, former judge of the Madras High Court, said the term “public personality” need not just mean government officials or politicians. It may include even businessmen who are popular. “Over and above the test of irreparable loss to reputation and availability of clear evidence to suggest a case, the courts should decide if such a restraint will serve public good,” he said.

Chandru said the courts should exhaust all other options before resorting to prior restraint. “The court should see if there is an alternate compensation mechanism that could be put to use,” he added.

This article draws upon an old article by the same author.