Injunction in Surya case bad in law

Last week, a city civil court in Bengaluru issued a blanket injunction order against dozens of media houses and social media sites from publishing anything ‘defamatory’ about Tejasvi Surya, the BJP’s Bengaluru South candidate in the Lok Sabha election. Surya had sought the injunction after reports of a woman making allegations of sexual misbehaviour against him on twitter. The injunction was issued ex-parte, that is, without hearing the opposite party.

The civil court will resume hearing next month. Such orders have increased in recent years. There is mounting public and professional criticism about the legality of such orders. The criticism is justified and needed. Surya could have exercised other legal options to protect his reputation more effectively without seeking to shut off the media.

He could have continued to engage more with the media and the public. It is lamentable that he chose, instead, a path that is mostly resorted to by corrupt or deviant members of our society.

What is defamation?

Defamation is a false statement presented as fact about any person (or, an extreme opinion about a person without any foundation in fact). The false statement or opinion — false enough to lower a person’s reputation in the mind of reasonable people in society should have been made publicly or to a third person. For instance, to publicly say that Mr X, a banker in his 40s, dyes his hair black would be a false statement if his hair is naturally black and he doesn’t dye it.

Yet, the false statement would not be defamatory. But if the statement was that X cheats or deprives his customers, and if it is not true, X could sue the maker of that statement in a civil court and seek monetary damages. The defendant in such a case (opposite party) would be asked by the court to prove the truth of his utterance. Buoyed by recent trends, if X seeks an ex-parte injunction, the court would most likely grant it, too.

In civil cases, the standard for seeking an ex-parte injunction is the possibility of irreparable injury that cannot be compensated in monetary terms. This standard often fails in defamation cases; loss of reputation could be generally compensated by awarding monetary damages.

Out of general respect for the constitutional right of citizens and the media to freedom of expression, the court is not expected to curtail a defendant unless he is first heard and asked whether he is in a position to justify his utterance. Our higher courts have always frowned upon the practice of civil courts issuing ex-parte injunction orders in defamation cases – except in extraordinary circumstances where the judge should take care to justify with reasons his ex-parte injunction.

A significant factor in defamation cases is that a plaintiff (petitioner) who approaches a civil court should plead his position truthfully on an affidavit. If the court later discovers that the plaintiff lied to the court, he could be prosecuted and jailed for making a false statement to the court. So, a civil court has a duty to verify that the plaintiff has carefully pleaded his case to rule out the possibility of the defendant proving the truth of his utterance. What is the actual practice in our courts, however?

In all civil cases, the plaintiff is required to pay a fee to the court. In most cases, it is a few hundred rupees only. Incidentally, the highest court fee paid in Karnataka is in a recent defamation case in which I represent and argue for the plaintiff. A court fee of Rs 53 lakh was paid in that case.

As such, I might know a thing or two about the practice in our defamation courts. I have looked into several defamation suits in which ex-parte injunction orders were issued. I could not find the justification for passing such orders in most of those cases.

In the case I represent, we did not even seek an ex-parte or even an interim injunction against the defendant from broadcasting defamatory content against the plaintiff – the law did not support such a request in the facts of that case. It is currently in an advanced stage of trial.

When an injunction is granted against a defendant, the court has a duty to precisely inform him about what he is asked not to do. If he knowingly violates the injunction, he would be liable for punishment. And, whether the defendant has violated the injunction should be capable of being ascertained readily and summarily without an elaborate trial.

Blanket injunction orders in defamation cases almost always fail this requirement. Such blanket injunction orders are as futile and pointless as asking a random citizen to, say, ‘not put up a building anywhere illegally’.

Hope our civil courts will follow the well-established law of defamation and do away with the trend of improper issue of ex-parte injunctions in defamation cases.

(The writer is a Supreme Court lawyer)