Free speech on trial: An avalanche of gag orders

A spike in ex parte injunctions reveals troubling patterns of unchecked power and media suppression in Karnataka

In 2019, Tejasvi Surya, then contesting the Lok Sabha election, secured an ex parte injunction against 49 media outlets after a woman accused him of sexual harassment.

In 2021, six Karnataka ministers won orders restraining the media from publishing defamatory content about them after TV channels aired a sex tape featuring a minister, Ramesh Jarkiholi. 

In 2023, a civil court issued an injunction against the release of a book about Chief Minister Siddaramaiah, which allegedly contained defamatory material against him and his son.

Not only politicians but bureaucrats, religious organisations and leaders, companies, businessmen men and even persons accused of crimes have managed to secure ex parte injunction orders against publication of reports about them, which they claimed to be defamatory. One person secured such an order against publication of a report about an accused in a cheating case who had a town’s name as surname, claiming that the report would defame the town.

The latest such injunction is the ex parte gag order restraining the media from publishing any “defamatory content’’ against the family running the Sri Manjunathaswamy temple, Dharmasthala, and the temple. This is in relation to charges of the secret burial of hundreds of bodies. A whistleblower has charged that he was forced to dispose of the bodies. A case has been registered, and a Special Investigation Team (SIT) is investigating the case. 

A civil court in Bengaluru has issued an order to 338 individuals and organisations,  and directed that 900 links and  8,800 stories be taken down. The court has also issued a John Doe order, which means the gag will apply to named and unnamed parties.

It may be for the first time that such wholesale killing of news has been ordered, a veritable massacre and blackout of stories.

An appeal with the Supreme Court by a YouTuber who said that the Bengaluru court order was obtained through “calculated abuse of judicial process’’ and “material misrepresentation’’ was not entertained by the court. The court told the complainant to approach the high court. Another YouTuber has approached the high court challenging the ex parte order, and a hearing is due in the lower court on Monday and in the high court on Tuesday.

Courts in Bengaluru have been issuing these gag orders to media houses, TV channels, online portals and social media platforms without listening to the media and giving them the opportunity to be heard. Though such injunctions are issued by courts in other states also, Karnataka stands out for the sheer number of such orders and the ease with which they are secured. They are often unfair and even arbitrary exercises of judicial power and violate media freedom, which derives from the fundamental right to freedom of speech and expression. They go counter to many judgments of the Supreme Court and high courts upholding the right to free speech. 

The News Minute, a digital platform, which made a study of the ex parte injunctions against news media in Karnataka during the period 2013-23 has reported that they had earlier ranged from 8 to 20 a year. There is a surge in numbers from 2017, with 30 to 80 suits a year. Deccan Herald had the maximum number of suits — a total of 516 — against it during that period. 

Politicians dominated the list of people who sought and got the injunctions. By one reckoning, more than 30 politicians secured them in recent years. There were, among them, more BJP politicians than those from the Congress or the Janata Dal (S). They include D V Sadananda Gowda, B Y Vijayendra, C N Ashwath Narayan, M P Renukacharya, V Somanna, D Sudhakar and Prajwal Revanna. In many cases, the injunctions would in due course be withdrawn or disposed of. Those who seek them might lose interest because the issue may have gone into the background or the circumstances may have changed. Some of them would still be valid. The preponderance of such cases in Bengaluru is clear from the fact that there were 88 injunctions against The Hindu in Bengaluru in 2023, while it had none against it in Chennai. 

Pre-censorship

Karnataka courts base their injunctions on a 1986 case in which B N Garudachar, who was the state’s Director-General of Police, got an interim order from the Karnataka High Court restraining politician A K Subbaiah from making defamatory statements about him. The court had then held that the right to freedom of speech and expression is restricted by a duty not to infringe upon the rights of others. The order has been selectively used by lower courts since then. The high court had also held that citizens and the media had the right to expose corrupt practices. A general principle, which is true and cannot be objected to, is being misused in particular cases to undermine a fundamental right and the public interest. 

An ex parte injunction is an act of pre-censorship and a denial of the right to free speech and the right to know. The Supreme Court has frowned on such restraints and disallowed them, and has endorsed freedom of the media in various judgments. They include Romesh Thapar vs State of Madras, where it held that “freedom of speech and of the press lay at the foundation of all democratic organisation”, and Brij Bhushan vs State of Delhi, in which it said the power of prior restraint, such as censorship, is a violation of the freedom of the press.  

Ex parte injunctions amount to prior restraint which is not recognised by Indian law, and the Supreme Court has repeatedly held that it is unconstitutional. The court has, over the years, progressively expanded the scope of the right to freedom of expression. The ex parte orders shrink the right. In R Rajagopala vs Tamil Nadu (1994), the court held that the State cannot justify prior restraint on publication on the ground that the material is likely to be defamatory. It upheld the right of a magazine to publish the life story of a death-row convict even without his consent.

In the 2024 Bloomberg v Zee Entertainment case, the Supreme Court clearly said: “An injunction, particularly ex parte, should not be granted without establishing that the content sought to be restricted is ‘malicious’ or ‘palpably false’’’. It also said that “granting interim injunctions before the trial commences, in a cavalier manner, results in the stifling of public debate.” The court specifically cautioned lower courts against SLAPP (Strategic Lawsuit Against Public Participation) suits by powerful economic entities “against members of the media or civil society, to prevent the public from knowing about or participating in important affairs in public interest” and underlined the citizen’s right to freedom of speech and the right to know. 

Stifling debate

The courts have generally held that pre-emptive restraints on publication are wrong and complaints about defamation and other offences can be heard after the publication. In a 2018 case involving publication of the videos of an investigative report, the Delhi High Court had said that “those who fill public positions must not be too thin-skinned in respect of references made upon them.” The court also added, “if courts are to routinely stifle debate, what cannot be done by law by the State can be achieved indirectly.’’ In another case in 2017, the Bombay High Court, setting aside a gag order, said that mere allegations of sensationalism in reportage were not enough cause to prevent the media at large from reporting. 

It is surprising that Karnataka’s courts are oblivious to the well-established legal and constitutional positions about the ex parte injunction orders and issue them without careful scrutiny. The higher courts need to take this unhappy trend seriously and ensure that the lower courts uphold the basic constitutional principles and the greater public interest.

In January this year, the Karnataka High Court ruled that trial courts should provide substantive reasons when granting temporary injunctions without prior notification to the opposing party. The ruling is in accordance with the stipulations of Order 39 Rule 3 of the Civil Procedure Code (CPC), which mandates clear justification for such legal measures to uphold judicial fairness and transparency. It was issued in an appeal from the Bowring Institute against a trial court’s ex parte decision that halted the institute’s disciplinary action against a member. It was even argued in the court that the trial court’s decision was not typically subject to appeals. Though the court struck down the decision and told the trial court to review the matter, and issued a general instruction on handling temporary instructions, the practice still continues.  The court should devise more effective ways of enforcing its view on an important issue involving fundamental rights. 

One reason cited for the proliferation of ex parte injunctions is that many of them are not challenged by media houses and which encourages courts to issue more of them. Another reason is that it is usually powerful persons who seek such injunctions. A third reason may be the lower court judges’ inadequate understanding of the law and the Constitution, and lax judicial standards. Why Karnataka courts are generous with the injunctions is anybody’s guess, and whatever the guess is, it does no credit to the state. It is usually the people who want to hide a wrongdoing who seek such an injunction, and that is why the Supreme Court said that the courts need to tread cautiously while granting pre-trial interim injunctions. 

Courts have to balance the individual’s right to reputation against society’s right to information. Often, what is presented as the right to reputation is the wish to hide crime, corruption and dishonourable actions. Defamation becomes real only when the defamatory material becomes public, and there are adequate legal remedies for it. Judges should not be injunction-happy and jump the gun, and if they do so, that can hurt the public interest and the reputation of the judiciary as such. 

(AVS Namboodiri is a former associate editor and editorial advisor of Deccan Herald)