High Court Reimposes the Original Gag Order on The Wire

The Gujarat High Court, through an Order on February 20, reimposed the ‘gag order’ of the Trial Court on The Wire in the Jay Amit Shah defamation case. The Trial Court had originally imposed an injunction on The Wire in an ex parte hearing on October 12, 2017. The court then revised its order on December 23, limiting the injunction to mentioning the name of the Prime Minister in relation to the profits of Jay Shah’s company. The High Court of Gujarat then amended the second injunction citing an ‘error’ on the part of the Trial Court. From the Order of the High one can peruse several interesting details.

The original injunction of the Trial Court was imposed ex parte meaning that The Wire or their legal counsel were not present at the hearings. The second injunction which modified the original order was passed after they had presented their case. The Order of the High Court noted that though the Trial Court had on the issues of a ‘prima facie case, balance of favour and irreparable loss’ decided in favour of the plaintiff. However, the court had recorded that these issues in favour of the plaintiff were ‘partly affirmative’, indicating that there was a case, but not as strong as one could be led to believe.

The High Court relied on sections of the Trial Court’s observations wherein it was mentioned that the defendants had “failed to show any direct or indirect nexus of association with Hon’ble the Prime Minister as regards to the increase in the business of the plaintiff. The defendants have failed to show any justification to the effect that following the election of Narendra Modi as Prime Minister, the plaintiff has flourished.” On this, the Trial Court observed that “the defendants need to be restrained.” It was on this basis, the High Court felt that the Trial Court had erred in its Order of restraining the defendants from publishing or “...narrating the lines or words, in the manner of “since Narendra Modi became Prime Minister / following the election of Narendra Modi as Prime Minister”...”

M K Venu, the Co-Founding Editor of The Wire, said that they were going to move the Supreme Court to challenge the High Court Order. This was because the Trial Court had in principle accepted their plea that there is no problem with instituting a defamation suit against them but imposing an injunction on publishing further stories violates basic press freedoms. Based on this the Trial Court felt that there was no need for a continuing injunction. The issue in question before the Trial Court was ‘can an injunction be continued against a media organisation from doing more stories on the same subject till the case is settled?’.

What is strange from the High Court’s Order is that despite noting the observation of the Trial Court that the issues – whether there was a prima facie case, where the balance of convenience lay, and whether there was any irreparable loss – were “partly affirmative”, amended the Trial Court’s Order to reflect the injunction passed when the defendants had not been heard. What is even more surprising is that a Court of Record, one empowered with Judicial Review, should pass an Order that infringes on the basic tenet of press freedom under Article 19 (1) (a).

M K Venu, responding to Newsclick, stated that “there is not a single Order from the Supreme Court or a High Court which has allowed an injunction to be perpetual until the case is settled in civil defamation.” This position holds true as going through the hefty piles of case law dating back to when the Constitution of India first came into effect would leave one with the impression that the Courts as a convention do not impose injunctions in perpetuity till the suit is when it comes to defamation suits.