Guest Post: The Allahabad HC – Abortion of Legislation by Judicial Fiat?

[This is a guest post by Tanishk Goyal.]


On March 3, 2021, a Division Bench of the Allahabad High Court took suo motto cognizance of the Uttar Pradesh Education Service Tribunal Bill, 2021. This cognizance was against the backdrop of a week-long abstention from judicial work by the advocates at the call of the Allahabad High Court Bar Association and the Awadh Bar Association, Lucknow. Briefly put, The Uttar Pradesh Education Service Tribunal Bill, 2021 seeks to establish an Education Tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of of Basic, Secondary and Higher Educational Institutions in the State. In order to do so, the Bill proposes to establish the principle bench of the Tribunal at Lucknow with a circuit bench at Allahabad. The proposed location of the Tribunal has been the subject matter of controversy since 2019, when this Bill was first passed by the State Legislature.

Taking cognizance of the said matter In Re Constitution Of Education Tribunals, the Division Bench did two things. First, it availed the details of the pendency in Service Law matters in the State which were sought to be adjudicated by the Education Tribunal. Upon availing the above details through the Court’s Registry, the Bench came to the conclusion that the pendency in Service Law matters was “not too much” and the same could be effectively remedied through the constitution of special benches by the High Court itself. Second, it passed the following directions. The wordings and implications of the directions so passed are instructive and deserve to be quoted in full:

“(i) The Chief Justice, Allahabad High Court be requested to

constitute appropriate dedicated Benches at Allahabad as well as at Lucknow for expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions.

(ii) The Legislature may complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court”.  (emphasis supplied).

While the concerns regarding the constitutionality of the bill itself have been raised on this blog earlier, through the present piece, I only seek to highlight certain constitutional concerns with the stay order passed by the Division Bench of the Allahabad High Court on March 3, 2021. However, before analyzing the constitutional concerns with the said order, it would be pertinent to understand the object and purpose of the Uttar Pradesh Service Tribunal Bill, 2021.

The Object and Purpose of the UP Service Tribunal Bill, 2021

The ultimate objective of the Bill of 2021 as evidenced through its Statement of Objects and Reasons is twofold. Firstly, “to provide a mechanism for the speedy resolution of disputes in service matters of teachers and non-teaching employees of basic, secondary and higher educational institutions. Secondly and relatedly, “to maintain and improve the quality of efficient functioning of institutions of basic secondary and higher education. This objective was against the backdrop of the rapid growth in litigations involving service matters of teaching and non teaching staff of these institutions. This objective was also against the backdrop of the judgment of an eleven-judge bench of the Supreme Court in the case of T.M.A Pai Foundation v. State of Karnataka, where it held that:

64In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education […]. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective.(emphasis supplied).

Thus, the constitution of a Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. In order to achieve the said objective, the Bill of 2021, through Sections 3-11 vests the Tribunal with various powers. These Sections, inter-alia provide for the establishment and composition of the Tribunal, the procedures to be adopted before it, the bar on civil suits, the power of the Tribunal to punish for its contempt and most importantly, a revisional jurisdiction to be exercised by the High Court. However, as will be illustrated forthwith, the Division Bench order of March 3, 2021 strikes at this heart of the Bill and renders it nugatory for all practical purposes.

Before analyzing the order of the Division Bench any further, it would be pertinent to reiterate here that while the Bill of 2021 still suffers from the same statutory defects that the Bill of 2019 did, which may ultimately render it ultra vires the Constitution, it is still not upon the judiciary to pre-empt its implications and put a stay upon its enforcement. This has been discussed forthwith.

The Order of the Division Bench of the Allahabad High Court

Having apprised the reader of the object and purpose of the Bill of 2021, an important point of departure here would be highlight the concerns that arise with respect to the two directions issued by the Division Bench in its order of March 3, 2021. The first direction holds that dedicated benches shall be created at Allahabad as well as Lucknow for the expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions. This direction essentially creates an Original jurisdiction of the High Court when only a revisional jurisdiction had been envisaged by the Bill of 2021. The second direction issued by the Division Bench restrained the State from constituting the Education Tribunal under Section 3 of the Bill of 2021 without the leave of the Court. As discussed earlier, the constitution of an Educational Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. Therefore, while the order says that“The Legislature may complete the process of enacting the Act of 2021, if it so desires”, the Court has effectively aborted the very essence legislation even before it came into effect.

This issuance of the above directions is classic example of the exercise of judicial fiat by the Division Bench where it has effectively defeated the legislative exercise undertaken by the State Legislature. The Bench has done so by essentially pre-empting that a dedicated Education Tribunal would be of no use if the original jurisdiction of the High Court is able to dispose off the cases in its capacity as the Court of First instance. Having pre-empted so, the Bench has also stayed the constitution of the Education Tribunal until a leave is sought from the Court. In doing so, the Bench only relied on the pendency data made available to it by the Registry of the Court. This essentially means that the Court discounted the need for any debate or discussion on the pendency data which was done in the Legislature when the Bill of 2021 was passed.

This approach was condemned by the U.S Supreme Court in the American Federation of Labour v. American Sash and Door Co., 335 US 538 (1949). Speaking through Justice Frankfurter, the Court held that:

But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests (emphasis supplied).

In a similar situation in India where the Court had extended the applicability of the Easements Act, 1882 to the State of Assam when the legislature had made it clear that the said Act had no application in Assam, the Court, in Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 held that:

“12. It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary” (emphasis supplied).

It is trite to mention here that while interpreting a statute, the Courts defer to the legislative wisdom by adopting a construction which makes it effective and workable. This deference is essentially in light of the principle of Separation of Powers and in light of the accepted fact that the legislature represents the will of the people, and the Court cannot substitute such wisdom with that of its own, unless the legislation is impossible to sustain. The Division Bench, in its order of March 3, 2021 has not given any reasons why such Bill may be impossible to sustain. Despite the absence of these reasons, the Bench not only struck at the heart of the Bill of 2021, It also usurped the field reserved for the legislature by creating an Original jurisdiction where only a revisional jurisdiction existed, based on empirical data which has neither been verified nor debated upon the by the State Legislature. 

While the concerns with respect to putting a stay on a legislation have been raised on this blog earlier, the Allahabad High Court’s substitution of the legislative will with its own notions of expediency, and its pre-emption of the ineffectiveness of an Education Tribunal (which ultimately led to the abortion of the Bill in its infancy), has struck at the root of separation of powers enshrined in Article 50 of the Constitution of India. Not only does this order go against the judgment of the eleven judge bench in T.M.A Pai(supra), it also violates the Basic Structure of the Constitution. This sentiment was emphatically echoed by a Constitution Bench of the Supreme Court in the case of GVK Industries Ltd. v. ITO [(2011) 4 SCC 36 where it held that:

“34. […] One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of Government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future.

35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. […] Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities” (emphasis supplied).

Conclusion

Notwithstanding the fate of vires of the Bill of 2021, it is imperative that the March 3rd order of the Allahabad High Court not become precedent for future cases. This is essentially because the order gives power to any Court which is conscious of an ongoing legislative process, to injunct the same quia timet, and transgress into a field which has only been reserved for the Legislature under the Constitution.

Having said that, it is now upon the State to contest this petition (the status of which is still shown as pending) and it can only be hoped that the above order is rectified so that the separation of powers as envisaged by the Constitution is brought to fruition in letter and in spirit in the times to come.

Guest Post: A Critique of the Supreme Court’s Farm Act Order – II

[This is a guest post by Aakanksha Saxena.]


The Supreme Court recently passed an order in discrete batches of petitions arising out of (1) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) the Essential Commodities (Amendment) Act, 2020; and (3) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, (‘farm laws’), and, the protest by farmers against these laws. Challenges have been filed to the constitutional validity of the laws. An initial petition filed was a PIL by a law student seeking removal of the protesting farmers from the Delhi borders. Another batch of these petitions deserves mention is that it reportedly “supports the validity” of the farm laws – something which is a fundamental presumption in the domain of judicial review.

The Order in question presents myriad concerns. While appreciating that the farmer’s protests have been peaceful, it is insinuated in the same vein that they may be a site of fomenting units which are banned for their secessionist tendencies – on the basis of a mere averment in an intervention application, which was nonetheless pressed by the Attorney General (although, in the final order, directions have been passed to file an affidavit). Further, while noting specifically the absence of counsel representing the farmers, the Bench has proceeded to pass orders indubitably affecting their rights. It appears that the Court has recognised the need for stakeholder participation and consultation as an essential step in policy making, by appointing the expert Committee which is to receive views from all the stakeholders involved; however, what failed to be appreciated is that such a process was integral and ought to have been implemented much prior in time than this hearing, and in any event prior to the enactment of the farm laws. Given the large-scale protests and evident grievances raised by the farmers, the decision-making process leading up to the farm laws could have benefited from stakeholder participation and could also perhaps have avoided agitation and litigation of this nature. The failure to conduct stakeholder participation has clearly led to a situation enabling intervention by the judiciary in the realm ordinarily required to be occupied by the legislature and / or policy makers. Much has been written and said about the impact of the Court’s Order on the farmers’ protests and the natural political posturing and consequences, but this post shall deal with one terse paragraph of the Order which touches on the aspect of judicial review, i.e., whether the Hon’ble Court could pass an interim stay of the impugned Farm Laws.

A reading of the Order discloses that the reasons which weighed with the Bench for staying the operation of the farm laws could be – that negotiations between the farmers’ groups and the Government had been fruitless, and an expert committee to act as a negotiator between the sides would “create a congenial atmosphere”, that some of the farmers bodies’ agreed to go before a Committee, and that senior citizens, women, and children would then be discouraged from protesting which was posing grave risk to these groups. There is not a single statement or suggestion in the Order that the farm laws may, prima facie, be unconstitutional.

Juxtaposed against the Court’s reasoning for the stay, this post seeks to examine the constitutional standards laid down in our jurisprudence for the stay of legislation, particularly economic policy legislation (the standard being somewhat less stringent than laws touching on fundamental and civil rights). It needs to be emphasised that this case was apparently made out by the Attorney General, and this post shall deal with some of those very same precedents that were cited at the Bar, being the inescapable law laid down by the apex court.

In its decision in Siliguri Municipality v. Amalendu Das, the Court was at pains to point out to the concerned High Court the need for self-discipline when it came to interim orders of stay, when the question arose in relation to tax recovery under narrowly applicable state legislation. The Court stressed on the need for a bench to consider the exigencies of the situations and strike the delicate balance. Subsequently, the Court while considering a challenge to Section 9 of the Reserve Bank of India Act, in Bhavesh D. Parish v. Union of India, then went on to consolidate the standard of judicial review by completely deferring to the legislature on economic policy and specifying that any interdiction by courts therein could lead to ramifications which could even retard progress by years. It was expounded that the Court ought only interfere where it was satisfied that a view in the legislation was such that it was “not possible to be taken at all”. This has been reiterated in the case of both legislation and executive policy, when the Court in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. clearly held that the court must leave the authority to decide its full range of choice within the executive or legislative power, and in matters of economic policy, the court gives a “large leeway” to the executive and the legislature. In Swiss Ribbons v. Union of India, the Supreme Court while considering a constitutional challenge to provisions of the Insolvency and Bankruptcy Code, expounded this principle as a “Judicial Hands off qua economic legislation”, which flows from SCOTUS Justice Holmes’ celebrated dissent in Lochner. It became the established position that legislatures may do as they feel fit unless restrained by constitutional prohibition, which prohibitions courts cannot extend merely by reading into them conceptions of public policy.

In Health for Millions, the concerned High Court had stayed the operation of Rules in Article 226 writ petitions, by issuing a single-paragraph order stating that ad-interim relief was granted since the Union of India had failed to appear and/or file reply. The Supreme Court strongly reiterated that passing such stay orders was at odds with the need for a court to refrain from staying the operation of legislation, unless the court is convinced that the legislation is patently unconstitutional and factors such as balance of convenience, irreparable injury, and public interest, favour interim stay. It therefore became necessary to set aside the interim impugned order given that the High Court did not consider any of these requirements.

The judgement in Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr. referred to in the Order also needs distinguishing for several reasons – it was in a civil appeal, from an order of the Bombay High Court i.e. a constitutional court which had adjudicated upon the validity of the legislation in question, arguments were extensively heard both in support of and against the order under challenge, merit was found in the argument to refer the question of law to the constitution Bench, and it was in that context that the Court found it was not restrained in passing orders to cover the interregnum before the larger Bench presided. At the very least the Bench in Jaishri Laxmanrao Patil engaged with arguments made for and against the stay of the operation of the law, examined the law and the exigencies, and reached a prima facie view on its validity before staying its operation. However, the same cannot be said of the Farmers’ Laws Order, where ostensibly, the hearing was being held in order to ameliorate the heightening tensions and pressure on the government arising out of what were admittedly peaceful, non-violent protests. Of highest concern should be the manner in which the stay was granted in the face of overwhelming binding precedent requiring a constitutional court to expressly reach a prima facie view of unconstitutionality of legislative measures before staying their operation and/or passing any interim measures. In view of the case made out for urgent hearing, the Supreme Court instead of hearing the challenge, chose to appoint a negotiator, and a committee of experts as a negotiator at that. It does not fall to the Supreme Court to direct such committee appointments and stakeholder participation at the stage of a constitutional challenge. It cannot fall from the Supreme Court to stay the operation of a law, de hors a prima facie view of its unconstitutionality, and merely in order to facilitate a political negotiation. The potential effect on future courts is unimaginably dangerous.

Civil Rights at the Bar of the High Courts: The Madras High Court on Gag Orders and the Kerala High Court on Voting Rights

Two High Court judgments delivered this month have restated certain important constitutional principles.

The Madras High Court and Injunctions

The first is the judgment of the Madras High Court in Ms Menaka v Arappor Iyakkam, delivered on 3 June by R. Subramanian J. In this case, a politician and certain government contractors [“the Applicants”] had filed a defamation suit against the Respondents. The Respondents had published certain claims regarding corruption in the award of government contracts involving the applicants. The applicants also filed for a broad, pre-trial injunction/gag order, asking the Court to “grant an order of ad-interim injunction, restraining the respondents/defendants their men and agents from in any manner, holding any press meet, releasing or distributing any statement to the Print and Electronic Media or to any one against the applicant/plaintiff and its business imputing the character or insinuating the reputation or linking the name of the applicant/plaintiff with any person(s) or defaming the name of the applicant/plaintiff in any manner, pending disposal of the above suit.”

These widely-worded prayers for injunctions are an increasingly common feature of defamation suits, and are granted with frequent regularity. As I argued recently, the purpose of such prayers is to effectively shut down any speech about the applicant by the respondent, until the final disposal of the suit (which could take years). This is because the civil law of defamation comes with certain inbuilt defences (truth, fair comment, etc.). In other words, you can make a defamatory statement (i.e., any statement that lowers the reputation of the plaintiff) without committing defamation (if that statement is true, or a fair comment etc.) However, these broad-ranging prayers, in the way they are framed, effectively take away the option of defences altogether, thus settling the case in favour of the plaintiff before a trial.

In this case, however, the Subramanian J. refused to grant the injunction prayed for. What is remarkable about his judgment is how unremarkable it is: Subramanian J. reached his conclusion not by making grand statements about the freedom of speech, but simply by following the law. As he noted, the common law rule in Bonnard v Perryman was clear: if, in a defamation suit, the defendant pleaded justification (i.e., the defence of truth), then a Court could only grant an injunction if it was prima facie clear that the defendant had no chance of proving the defence at trial. (paragraph 20) Bonnard v Perryman had been followed by the Delhi High Court in Tata Sons v Greenpeace (paragraph 26), and continued to be good law in England (paragraphs 24 & 25) as well as in Canada (paragraph 29). Consequently, Subramanian J. held that:

An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. (paragraph 30)

On the facts before him, Subramanian J. found himself prima facie satisfied that the Respondents were not acting out of malice, and that the veracity of their statements would have to be tested at a trial (i.e., they could not be declared false out of hand) (paragraphs 36 – 40). That was enough for him to decline – on the basis of existing law – the prayers for injunction.

Subramanian J. also made it clear that the case presented no privacy claims, as the comments concerned a politician’s official functions (paragraph 24). He, therefore, nipped in the bud what has become (of late) a disturbing tendency to invoke the Supreme Court’s privacy judgment in Puttaswamy as a sword to curtail other rights, rather than as a shield against State intrusion (paragraphs 3133) (a good example of this is the Ramdev injunction, which the Madras High Court expressly declined to follow).

The Madras High Court’s judgment joins a slow – but hopefully steady – judicial push back against trigger-happy judicial injunctions in defamation cases – a trend exemplified by the Bombay High Court recently, as well as the Karnataka High Court lifting the gag order in the Tejaswi Surya case.

The Kerala High Court and Voting Rights

The second judgment comes from the Kerala High Court. A. Subair v The Chief Election Commissioner involved the deletion of a voter from the voting rolls, on the basis of a “house to house check.” The State also argued that a draft electoral roll had been published, and objections had been invited from deleted individuals. Rejecting this argument, and reading S. 22 of the Representation of the People Act – which required an opportunity to be heard – the Chaly J. held that “… the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned. Bearing the said aspects in mind, it is clear, no such serious exercise is undertaken by the officer, before removing the name of the petitioner. It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law. (paragraph 10)

The highlighted part is particularly crucial. This is because, in recent years, there have been reports of large-scale voter deletions, caused by the use of faulty software by the EC. In other words, deletions happen through an automated process. This has been challenged in the Hyderabad High Court where the case has been pending for many months now. One of the crucial issues at stake involves the concept of the “right to an explanation”: that is, if I am deprived of a right by an automated decision, taken by a machine, then I have the right to be given an explanation for how that decision has been taken.

One of the major arguments use to dodge that in the case of voter deletions is that the right to vote is merely a statutory right. As I have attempted to explain before, that argument is flawed: voting is a statutory right in the sense that the procedure and modalities of voting are determined by statute, but the act of voting itself is a fundamental freedom protected by Article 19(1)(a) of the Constitution. Therefore, the denial of voting altogether is a constitutional violation, and must be treated as such. Consequently, whether or not the Election Commission uses technology to “clean up voter rolls” (and the constitutional issues with that are another matter), the basic point remains that before a voter’s name is deleted, they must be heard: as the Kerala High Court correctly observed, the process where the name is first deleted, and then the burden is placed upon the voter to come forward and protest, is entirely illegal – no matter how well-publicised the deletions are, and how many “opportunities” are given.

The underlying basis should be obvious: the burden of being able to exercise a fundamental right is not on the citizen, but upon the State, when the latter seeks to deprive her of it. The Kerala High Court judgment is a crucial endorsement of that rather basic constitutional principle; and it is to be hoped that in the ongoing challenges to the EC’s actions before the Hyderabad High Court, that principle will be adhered to.

Freedom of Speech at the High Courts: Contrasting Decisions from P&H and Bombay

Two decisions, delivered over the last few days, exemplify how the terrain of free speech remains a contested field in Indian constitutional law.

Burdening Legal Speech: Vishal Dadlani and the P&H High Court

Vishal Dadlani v State of Haryana came to the Punjab & Haryana High Court as a quashing petition. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E of the IT Act (publishing images of private body parts). These FIRs arose out an event in 2016, when the Haryana Legislative Assembly invited Tarun Sagar, a Jain monk, to deliver an address; according to the tenets of his faith, he did so in the nude. On Twitter, Dadlani criticised this strongly, focusing his ire upon the mixing of politics and religion. After getting into acrimonious arguments with Tarun Sagar’s followers, Dadlani apologised.

Meanwhile, Tehseen Poonawala criticised the prevalence of sartorial double standards, asking “why is this naked man ‘holy’ even if he walks nude in the state assembly while a woman would be termed a slut?” To drive the point home, he also posted a photograph of a “half-naked woman”, placed alongside a photograph of Tarun Sagar. From a perusal of the tweets, it appears that at least partially, Dadlani and Poonawala’s outrage was triggered by Tarun Sagar making various remarks about the role and place of women in society, such as asking wives to “accept the discipline” imposed by husbands.

Counsel for both petitioners argued that none of the offences were made out, even prima facie (counsel for Dadlani made the additional point that he had apologised directly to Tarun Sagar, and Sagar had accepted his apology; consequently, nobody from the Jain community had taken any action – the complainant at whose behest the FIR was registered was an outsider).

After extracting the submissions of both parties (including relevant precedent), the High Court held that the quashing petitions ought to be allowed, for (broadly) the following reasons: first, none of the followers of the Jain religion had initiated proceedings, or had come forward as witnesses; secondly, it had been long-accepted in Indian jurisprudence that the right to free speech included the right to express socially and culturally unpopular or unorthodox views; thirdly, the mens rea required for offences under Sections 153A and 295A had not been demonstrated; and fourthly, after two and a half years, the State had not granted sanction to prosecute, clearly demonstrating its own lack of interest in pursuing the case.

The High Court, therefore, announced that it would quash the FIRs; but in the last two pages of the judgment, it suddenly veered off into unorthodox territory. The Court noted that “justice” would also have to be done to the Jain community; it then observed:

If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property. However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such like protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner – Vishal Dadlani and the petitioner – Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)

In other words, therefore, the High Court made the quashing of the FIRs conditional upon both petitioners paying Rs. 10 lakhs as costs.

Now, a few observations need to be made about this order. The first is that this order is incoherent. Effectively, it tells the petitioners, “you have committed no crime, but unless you pay Rs 10 lakhs, criminal proceedings against you will continue.” This cannot be. Once the High Court returned the legal finding that the offences under Sections 153A, 295A, 509 IPC and 66E were not made out even prima facie, then it followed from that finding that the FIRs would have to stand quashed. Accepting the alternative proposition would mean that if the petitioners refused to pay Rs. 10 lakhs, then the FIRs would continue and the case would go to the stage of charge and trial despite a judgment by the High Court stating that the offences had not been made out. This would be patently absurd – what, exactly, would a trial court be expected to do when faced with a situation like this?

Apart from being absurd, the High Court’s order is also illegal. Once it had found that the offences had not been made out, the logical consequence to that finding was that the petitioners had engaged in legal speech (however ill-thought, crass, or crude that speech might have turned out to be). Levying a financial penalty of Rs 10 lakhs upon that speech, then, is a classic case of judicial censorship: penalising speech in the absence of a law. As I have argued before at some length, this is, quite simply, impermissible under the Constitution. The only method through which speech can be penalised is through a State-made law (which is subject to judicial review) Under Article 19(2), as held in both Mirajkar and (more directly) in Rupa Ashok Hurra, judicial orders do not count as law.

But apart from being absurd and illegal, the High Court’s order also betrays some fundamental misunderstandings about Indian free speech jurisprudence, and the point of having a constitutional right to free speech in the first place. By noting that the purpose of its order is to deter people from mocking “at any head of a religious sect, just to gain publicity on social media like Twitter“, the Court lays down an extraordinarily broad and vague standard for the future. Recall that this comes after the Court had found that there was no mens rea to hurt religious sentiments or provoke enmity between classes; effectively, therefore, individuals who make comments that can be construed as “mocking the head of a religious sect”, and whose motives can be construed to be “just to gain publicity on social media”, can expect to be slapped with costs of Rs 10 lakhs. If this was the standard set out in a law, it would be immediately struck down as unconstitutional; indeed, in Shreya Singhal, similar phrases such as “grossly offensive” and “menacing” were struck down as being overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions such as these create a “chilling effect”: they blur the line between what is permitted and what is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of that (now) invisible line.

There are two more serious mistakes in the High Court’s reasoning. The first is an implicit comparison it makes between what Tarun Sagar has done for the poor, and what the petitioners have (or have not) done. This is entirely irrelevant: the Indian Constitution does not assign value to free speech based upon the social qualities of the speaker. Setting up a hierarchy of speakers, where those who have done social work have more free speech rights than those who haven’t, is entirely inconsistent with the very concept of a right, apart from failing to understand that the Constitution protects free speech for reasons flowing from individual self-determination, democracy, and the search for truth, none of which have anything to do with the qualities of the speaker. And secondly, the High Court’s reference to “large scale violent protest” because of “incitement” on social media sanctifies the heckler’s veto: it places the burden of preventing riots on those who speak, rather than upon those who riot. That cannot be, as the Supreme Court held in Rangarajan.

It should therefore be clear that, both from the perspective of legality, and form the perspective of the deeper constitutional principles underlying the free speech guarantee, the High Court’s order is unsustainable, and ought to be promptly overturned on appeal. 

Defamation and Injunctions: The Bombay High Court

Meanwhile, in Lodha Developers Ltd v Krishnaraj Rao, the Bombay High Court considered a (typical) injunction application in a defamation case. The plaintiff was a real estate developer. Defendant No. 1 was a journalist, who had written critically about the plaintiff. Defendant Nos. 2 and 3 were purchasers who bought flats from the Plaintiff; they found the Plaintiff’s conduct and quality unsatisfactory, and criticised it online (according to the Plaintiff, it “went viral”). The plaintiff then filed a defamation suit. The defendants (as the Court noted in paragraph 11, pleaded the defence of justification (i.e., truth)). In this particular proceeding, however, the injunction was requested only against Defendant No. 1, and for five specific statements: an allegation that the plaintiff was “in connivance” with the MMRDA officials, that there was “golmaal”, that “norms” had been thrown to the winds, that “banks are part of the Lodha scam”, and that there was no occupation certificate.

Gautam Patel J. refused to grant relief for any of the five statements. His reasoning repays close study. For each of the statements, he began by carefully distinguishing whether they fell in the category of “facts”, or of “comments”. This distinction is crucial to defamation law, but is (unfortunately) far too often ignored in practice. The reason for this is that there are two separate defences in the common law of defamation: justification, and fair comment. Justification (or truth) applies to factual statements. Fair comment applies to opinion; now, contrary to what it sounds at first blush, the term “fair comment” does not mean that the comment must be “fair”, but merely that it must be founded on some factual basis that is of relevance to it. Once the factual basis is set out – and it is made clear that the comment pertains to those set of facts – then the defence applies, even though the comment itself might be hyperbolic or excessively dramatic. The reason for this is that once the reader has the facts in front of her, and has the comment, then she is best-positioned to judge whether the comment is warranted on the basis of the facts or not.

Applying this distinction, Patel J. noted that the first, second, and fourth statements were comments (and for the second comment, the Defendant promised not to repeat it without setting out his facts); and the third and fifth were factual statements. For the first and fourth statements, Patel J. held that the Defendant had set out the factual context from which he had drawn his inferences. Consequently, no injunction could be granted.

This brought the Court to the third and fifth statements, where the defence of justification (truth) was pleaded. The Court then considered the legal standard that was to apply when an injunction was sought on the basis of disputed facts. On a review of precedent (paragraph 26 onwards), the Court correctly concluded that at interim stage, an injunction could only be granted if the defences were bound to fail at trial. Consequently, as long as the Defendant produced some material in defence of her factual statements, the case would go to trial, but at the interim stage, she would not be injuncted.

This is an important observation, for many reasons. First, it adds further heft to the Delhi High Court’s detailed judgment in Tata Sons v Greenpeace, where, after a detailed survey of the common law of defamation, and in the context of Article 19(1)(a) of the Constitution, Justice Ravindra Bhat had arrived at an identical conclusion. Secondly, it comes at a particularly important time, when broad-based injunctions, granted at the ex-parte ad-interim stage, are becoming increasingly common (the Tejaswi Surya gag order, which was later set aside by the Karnataka High Court, being the latest example). By restating the law, Patel J. reminds us that at the interim stage, the law of defamation is actually tilted towards the speaker (as it should be, because the correct remedy for defamation, being a tortious offence, is compensation, not gagging). It is not for judges to take a look at the plaint, find themselves shocked at the seeming attacks upon a person’s reputation, and immediately proceed to issue gag orders; rather, it is for judges to remember that the rule is that speech is to be met with counter-speech pending trial, and a gag is the very rare exception. And thirdly, the judgment reveals the flaws in the reasoning of Shri Maheshwar Hydel Power Corporation v Chitroopa Palit, a 2004 judgment single-judge judgment of the Bombay High Court, which also concerned defamation and injunctions. In Palit, however, the Court articulated a significantly higher threshold at the interim stage, including (among other things) a requirement for the defendant to show public interest (note that “public interest” is a requirement under criminal defamation law, not civil). In the present case, Patel J. observed that even the tests under Palit had been satisfied; his own articulation of the standard, however, as we have seen, falls on the Tata Sons v Greenpeace side, and raises the hope that in due course, Palit will become an outlier judgment, as more and more cases endorse the (correct) Greenpeace view.

One final point: it was argued before the Court that the harm had been accentuated because the defamatory statements had gone viral on social media. This form of argument – that holds that legal standards protecting speech should be diluted based on the medium – is a familiar one; recall that it was made in Shreya Singhal as well, and the judgment itself is unclear on what stand it takes. Patel J., however, was unequivocal: the medium made no difference to the legal and constitutional standards at issue. Indeed, he made the (additional) important observation that the plurality of voices in the online world made the requirement of tolerating opposed views more urgent, rather than less.

Conclusion

The contrasting judgments – and approaches – taken by the Punjab & Haryana and the Bombay High Courts remind us that free speech adjudication remains highly judge-centric. A part of the reason for this seems to be that the separation between speech that we perceive to be irritating, value-less, mischievous – in a word, rubbish – and speech that is illegal, is still not embedded firmly enough in our jurisprudence. This is not necessarily a criticism: notwithstanding (the quotation attributed to) Voltaire, it is but human to allow one’s contempt for a speaker, or for what they are saying, to get in the way of a dispassionate constitutional analysis. That is what seems to have happened in the P&H case, with the pointed references to the petitioners’ (lack of) social work, and their desire for fifteen minutes of fame on twitter. But the future of Indian free speech jurisprudence depends upon judges being able to make that distinction; hopefully, they will have that opportunity soon enough.

Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions

In an interesting judgment delivered earlier this month (Director-General v Haufiku), the Supreme Court of Namibia restated some common-sense principles about the relationship between freedom of speech, national security, and judicial injunctions. The facts in Haufiku were straightforward: The Patriot, a Namibian newspaper, had uncovered some information about potential corruption within the Namibia Central Intelligence Service [“NCIS”]. It appeared that the NCIS had purchased farms and houses using public funds, which was then given over to a private association of ex-NCIS employees. When The Patriot’s journalist wrote to the Director of the NCIS with queries about these purchases, he was informed that his questions fell within the scope of “sensitive matters and/or classified information” (para 11). Under the terms of the Namibian Protection of Information Act [“PIA”] (whose provisions are strikingly similar to our Official Secrets Act) and the Central Intelligence Services Act [“CISA”], not only was the NCIS not obliged to provide information, but also, possession and publication of such information was an offence. Accordingly, the NCIS subsequently approached the courts for an interdict that would prevent The Patriot from publishing what information it did have.

General Grievous Meme

The State’s Arguments

It was argued before the courts that the information in The Patriot‘s hands violated the PIA, as it related to a “prohibited place” and/or a “security matter.” In particular, it was argued that “if the information were published, it would threaten or jeopardise the national security of the State” (para 18), “any disclosure of information which showed either the capability or a lack of resources on the part of the NCIS is unlawful as it undermines the effectiveness of the institution and with that posed a security vulnerability to the State of Namibia” (para 19) When asked to substantiate this argument, the NCIS argued that it was not obliged to do so, because the Courts did not have any jurisdiction to assess national security questions on their merits (paras 37 and 44 – 48). In short, the NCIS made a rather meta argument: the information that The Patriot wanted to publish impacted national security, but how it did so could not be revealed (inter alia, because that itself would be tantamount to impacting national security). As the Court characterised the submission:

  • The NCIS is the sole determiner of whether or not there is a threat to national security from the disclosure of information by a member of the public and not even the courts may inquire into that;
  • The NCIS is not obliged (in fact it is prohibited not) to place evidence before court in court proceedings to justify its conclusion that publication will be harmful to national security;
  • All the NCIS needs to do in court proceedings aimed at supressing publication of ‘secret’ information- be it about its assets or anyone associated with it – is to assign it the label of national security and to assert that publication will compromise national security and the court is bound in law to grant an interdict prohibiting publication;
  • The NCIS is under no obligation to reply to any enquiry by the media or to comment on any matter relating to or concerning the NCIS, even if it involves an allegation of a crime such as corruption. (paragraph 50)

(Readers who followed the Attorney-General for India’s arguments during the Rafale review petition will recall that this was more or less exactly the same argument advanced by the State in that case.)

The Court’s Analysis

The Court began by making the sharp observation that “the written submissions refer altogether to a staggering 50 cases a significant number of which are pre-independence cases decided under the pre-independence securocratic ethos which conjure up images of our painful colonial past.” (paragraph 43) (N.B.: “securocratic ethos” is a brilliantly evocative phrase to describe one of the fundamentals of colonial regimes all over the world!) Moving on from that, it then observed that, as a matter of legal burdens, because the NCIS was the body that was seeking the injunction (instead of a situation where, for example, the journalists were seeking disclosure), the onus was upon it to demonstrate what right was being interfered with. For this, “the mere assertion of a reasonable apprehension or fear of interference would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well grounded.” (paragraph 62)

Crucially, the Court then went on to note that this basic legal requirement – of establishing facts – did not go to sleep in a sand-box just because the State was invoking national security. As the Court made clear:

It needs to be made clear as a preliminary matter that we do not agree with the Government’s refrain, repeatedly pressed with great force in the written heads of argument, that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict.

The notion that matters of national security are beyond curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality. That is not to suggest that secrecy has no place in the affairs of a democratic State. If a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication. (paragraphs 84 – 85).

In the instance case, the Court found that neither with respect to the Association, and nor with respect to the properties that it had purchased, had the NCIS made any kind of case – or submitted any kind of evidence – to demonstrate national security concerns. For example:

…the information about the properties is not inherently secret (such as a military installation, equipment, password etc.), making it obvious to anyone who possessed it, even inadvertently, that it concerned or was a matter of national security. What is in issue are a house and a farm which are readily accessible to the public – without any indication that secret government operations were being carried on there as contemplated in s 23 of the NCISA. (para 102)

For these reasons, the Court denied the claim for injunction.

National Security

Conclusion

While at first blush, the Supreme Court’s judgment seems to be doing nothing more than recapitulating well-settled principles of law, there are a few reasons why, nonetheless, it is an important judgment in a comparative context. The first is that notwithstanding how well-settled these principles are, they come under repeated challenge from State authorities. As I mentioned earlier in this essay, readers will recall that the Attorney-General’s arguments in Rafale went along precisely these lines: the Court was asked to adopt a hands-off approach towards the fresh documents on national security grounds; when it was pointed out to the AG (by the Chief Justice) that under evidence law, all that mattered was a document’s relevance, and not how it had been obtained, the AG asked the Court to carve out a special exception to this rule for “national security” matters (a request that the Court fortunately declined). The AG also declined to justify his arguments, again on the basis that the moment “national security” was invoked, the Court had to back off. This is precisely the kind of “securocratic ethos” that the Namibian Supreme Court decried, and which is simply inconsistent with the principles of an open, liberal-democratic society.

The second important point is that the Namibian Supreme Court also made clear that invoking national security did not exempt the State from having to prove its case in the normal manner. While some necessary leeway could be made – such as having an in-camera proceeding while adjudicating the State’s claims (or sealed covers?) – the legal standard would remain the same. Invoking “national security”, therefore, would not cloak the State with some special kind of immunity; when it came to an injunction and the suppression of speech, the normal standards would apply. This, of course, has been the teaching of a number of Courts ever since the Pentagon Papers case (even if the Namibian Supreme Court’s judgment did not quite rise to that level, and had perhaps some unnecessary observations about hypothetical cases where it would grant injunctions). It is also important, because even if a Court does not except that it is divested of jurisdiction to adjudicate such cases, a highly deferential standard towards the State effectively achieves the same outcome. What is needed, therefore, is a shift from the “securocratic ethos” – where the invocation of national security is given a presumptive deference that is not extended to other claims – to the “constitutional ethos” where, ultimately, what is supreme is the Constitution, and constitutional values (including those of free speech).

It is in that sense that the Namibian Supreme Court’s judgment represents an important step forward in the global struggle against the permament entrenchment of the “securocratic ethos”, and towards an open society.

 

Death by a Thousand Cuts: Freedom of Speech, Injunctions, and the Ramdev Affair

On 23d July, the Supreme Court passed an order on an appeal from the Delhi High Court’s decision to issue an ad-interim injunction upon the publication of the book “Godman to Tycoon – The Untold Story of Baba Ramdev.” On the submission of counsel, the Court requested the Delhi High Court to decide the case by the end of September. The Ramdev Saga – for it has not rumbled on for more than a year – is a stark illustration of how, on the subject of freedom of speech, different levels of the judiciary treat this fundamental right with an indifference that borders on contempt.

Let us briefly review the history of Godman to Tycoon’s entanglement with the Courts. To recall, this is a biography of Baba Ramdev, the yoga guru and business entrepreneur who, by any account, is a hugely influential figure upon the country’s political stage. After the book was published Ramdev’s lawyers sought moved for an ex parte ad-interim injunction before a Delhi trial court, and were granted the injunction on 4th August, 2017 (an ex-parte ad-interim injunction, by definition, is passed without hearing the other side). The injunction remained operational, and two months later, in October 2017, the author appealed to the Sessions Judge. It took five months (!) for arguments to conclude, and at the end of April, the Sessions Judge lifted the injunction, observing – among other things – that the author had argued that the biography was based on factual material, and that Ramdev himself was, indisputably, a public figure. Ramdev appealed to the High Court, and the single judge (Justice R.K. Gauba) restored the injunction on 10th May. That remains the situation today. It is now one year, and – thanks entirely to the Courts – the book has remained under an injunction for all but ten days, and without any finding on merits.

Judicial injunctions – especially those passed at the ad-interim stage – are devastating weapons against free speech. By preventing the publication and distribution of a book, they choke off and distort the “marketplace of ideas” at its very source. Contrary to a penalty imposed upon a speaker or a writer after a full-fledged trial, injunctions suffocate speech at the very outset. For these reasons, some scholars have (albeit controversially) compared them to “prior restraints” on speech (e.g., the governments banning books). Whether or not a judicial injunction is equivalent to a book ban, however, it is at least clear that its impact upon a fundamental right as foundational as free speech requires a court to exercise great caution before it issues injunctions.

Ironically, it is the Delhi High Court that has been most sensitive to this (rather basic) point. In Khushwant Singh v Maneka Gandhi – a judgment that Justice Gauba appears to have been singularly unaware of – a division bench of the High Court refused Maneka Gandhi’s application for an injunction upon a chapter of Khushwant Singh’s autobiography that dealt with the Gandhis. Maneka Gandhi had argued that the contents of the chapter were both defamatory, and impinged upon her privacy. Crucially, Justice Kaul observed:

… the respondent has already chosen to claim damages and her claim is yet to be adjudicated upon. She will have remedy if the statements are held to be vulgar and defamatory of her and if the appellants fail to establish the defense of truth.

We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwani that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the Scheme of our constitutional framework.

One aspect is very material – a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted.

There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.

We do not think it is a matter where the author should be restrained from publishing the same when he is willing to take the consequence of any civil action for damages and is standing by what he has written … there is no question of any irreparable loss or injury since respondent herself has also claimed damages which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per well established principles of law.

Justice Kaul’s crucial insight was that in civil suits for defamation or breach of privacy, where monetary damages are claimed, the “balancing” between the freedom of speech on the one hand, and an individual’s right to reputation and to a private life on the other, is to be struck through a final judgment on merits. This is especially true when the writer or speaker stands by her words, and is willing to defend them through the course of a trial. Granting an injunction before trial – and thereby putting the book out of circulation – would effectively censor the speaker, and prejudge her legal defences before she even had a chance to make them. On the other hand, the individual alleging defamation or breach of privacy would always have a remedy open to her if she was able to prove her case – that of monetary damages.

Justice Kaul’s observations were developed in great detail a few years later, in the famous Tata v Greenpeace judgment. This case involved a request for an injunction upon a computer game that, the plaintiff claimed, maligned its reputation. Embarking upon an exhaustive survey of common law, Justice Bhat summarised the position as follows: the foundational value of freedom of speech in a democracy required that a Court should be extremely slow to grant an injunction pending trial. In particular, a Court ought to refrain from doing so if the writer or speaker puts forward a defence, and is willing to stand trial. Only if the defence is prima facie frivolous or unsustainable, should the Court grant an injunction. Justice Bhat noted that this had been the position in common law and, after the passage of the Indian Constitution and Article 19(1)(a), applied with even greater force.

When you apply these principles to Justice Gauba’s “order” of 10th May 2018, its staggering ignorance of the law is evident. The Learned Judge observes that:

The contents of the book to which exception is taken in the plaint of the petitioner, some of which have been extracted, prima facie, do seem to carry insinuations as are likely to harm the reputation of the petitioner in public esteem. In her written statement, the author of the book (respondent herein) while raising preliminary submissions and objections has claimed that the statements in the book “can be justified”, they having been penned with “journalistic objectivity” in fair and impartial manner, and “in good faith for public good” not being defamatory. The written statement of the publisher (respondent in these petitions), inter alia, states that there is “no malice or personal grudge” against the petitioner as an individual, the contents of the book representing “only reported true facts as gleaned from publicly available documents and merely contains legitimate and reasonable surmises and conclusions drawn therefrom” and further that every statement appearing in the book is “either itself a demonstrably true statement of fact, or a reasonably and legitimately-held opinion or inference of the author of the book.” In sharp contrast, in the impugned publication the publisher has added a disclaimer stating that the views and opinions expressed therein are “the author’s own” and further that the facts contained therein “were reported to be true as on the date of publication by the author to the publishers of the book, and the publishers are not in any way liable for their accuracy or veracity.” The use of the expressions “surmises” and “inferences”, coupled with the disclaimer, shows the matter requires deeper scrutiny to test the veracity of the claim of the author as to the truth.

First of all, it is difficult to understand what the “sharp contrast” is between the author and the publisher’s statements. Secondly, it is difficult to understand what the disclaimer has to do with anything. But thirdly – and most importantly – the judgment concedes that the matter requires “deeper scrutiny”, but proceeds to injunct publication in the meantime anyway! If Justice Gauba had perhaps taken some time out to visit the Judges’ Library and consult the precedent of his own Court, he may have understood how this reasoning inverts the entire system of values that underlies the Constitution, placing the burden upon a writer to justify her exercise of free speech, instead of upon those (in this case, a very powerful public figure) who seek to silence her.

If the Supreme Court’s request is adhered to, and the case decided by the end of September, the book will have been injuncted for fourteen months before any kind of review on merits is completed. In this case, it perhaps doesn’t matter, because Ramdev is not going to depart from the public stage any time soon. In other cases, however, time-bound publication is of the essence, and an injunction of this kind that is then left to the vagaries of our snail-paced judicial system, can destroy the entire purpose of writing the book in the first place.

Unfortunately, however, despite the clearly-reasoned judgments in Khushwant Singh and Tata v Greenpeace, trigger-happy judicial injunctions are the norm rather than the exception. In a post written two months ago, while examining some other egregious orders from various High Courts, I had made the following observation:

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

The problem is less one of doctrine – the doctrine exists – and more one of attitude. Judges at all level of the judiciary tend to view the freedom of speech more as an annoyance or a bother, rather than a foundational democratic value. To them, Victorian ideas of the sacrosanctity of “reputation” continue to hold overriding importance (this was visible, for example, in the Supreme Court’s criminal defamation judgment). As long as that attitude continues to prevail, notwithstanding the finely-reasoned judgments of a Justice Kaul or a Justice Bhat, that excavate and lay out all the principles in detail, the “gag first, ask questions later” judicial culture will continue.

Another possible alternative is for the Supreme Court to step in and clearly delineate the standards to be followed when granting or withholding an injunction in a free speech case.

And who knows, in the days to come, it might even be the Ramdev case that provides it with that opportunity.

The Bombay High Court’s Ruling on NSE’s Defamation Case against Moneylife

In a significant judgment delivered yesterday, the Bombay High Court rejected the National Stock Exchange’s application for injunction, in a defamation action, against the journalist Sucheta Dalal (and others), for articles published on the financial news website, moneylife.in. Justice Gautam Patel also imposed heavy damages upon the NSE, in what seems to be an acknowledgment of the need to put a halt to proliferating SLAPP lawsuits (although imposing damages in an injunction application without disposing off the main suit seems a little incongruous). The imposition of damages will be particularly controversial, but it is not an issue I will deal with here.

The case is significant because it adds to a growing body of (High Court) jurisprudence on the relationship between defamation and the freedom of speech and expression. The constitutionalisation of defamation law, which began in the 1994 judgment of the Supreme Court in R. Rajagopal’s Case, has enjoyed an uneven history over the last twenty years.  The Bombay High Court’s decision bucks an emerging trend of subjecting defamation law standardsto rigorous constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading advantages to users of certain high-end technology. The two articles were written on the basis of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but received no reply. A reminder email and a reminder SMS were also met with silence. After this failed correspondence, the two articles were published.

NSE claimed that the accusation was false, since the illicit advantage it talked about was technically impossible to arrange. NSE’s argument, consequently, was that the articles were defamatory, and not saved by the defences of truth, fair comment, or qualified privilege (the standard defences in civil defamation law).

In dealing with this submission, Justice Patel focused at length on Ms Dalal’s attempts at investigating the veracity of the claims made in the anonymous letter, and the NSE’s refusal to furnish her with the information they then put in their plaint, in order to argue that the Moneylife articles were false (i.e., the “illicit advantage” was not technically possible). Notice, however, that the common law of defamation is a strict liability offence: i.e., a false defamatory statement results in liability for the defendant, notwithstanding the care he or she took to establish its veracity. The relevance of Ms. Dalal’s investigations, therefore, depended upon modifying the common law standard of defamation, which is what Justice Patel proceeded to do. In paragraph 22, he noted:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this: that there is a material difference when the complainant plaintiff is a public persona or figure or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course, the classic decision in New York Times Co. v Sullivan, for its proposition that a public official cannot recover damages in a defamation action unless he proves with convincing clarity that the statement was made with knowledge of its falsity or with reckless disregard of whether or not it was false. This standard has been generally applied to public figures, but I will for the present, set this to one side since Sullivan seems to me to be closely hinged on the First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer to our conception of the law in the field, though the law it states is somewhat different, as Radhakrishnan J noticed, from our own standard. I do not think this distinction is material, given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials. Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very much a public body, then this standard must apply. In that situation, a demonstration that the defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for an injunction and a charge of malice.”

There is one crucial advance in this paragraph. In Rajagopal’s Case, the Supreme Court – following Sullivan – limited the higher threshold for defamation to public officials. As Justice Patel correctly notes, in the United States, “public officials” has subsequently been expanded to include public figures as well as issues of public importance. Although Justice Patel refuses to adopt the Sullivan standard here, in adopting the House of Lords decision in Reynolds, he definitively extends the threshold to public bodies and public figures. This is important, because a number of SLAPP defamation suits have been brought by large-scale private corporations that are (at least arguably) performing public functions. Justice Patel’s reasoning, therefore, opens the door to heightened scrutiny being applied to private corporate defamation claims as well. Something similar had been attempted six years ago by Justice Ravindra Bhat of the Delhi High Court in Petronetwhere in a claim injunction against disclosure of confidential information, a company with 50% state shareholding, and performing the important public function of gas distribution, was held to a Pentagon Papers-level threshold. Petronet, however, did not directly deal with defamation law. The Bombay High Court’s judgment is squarely on point.

It must also be noted that Rajagopal is a highly confusing judgment, which Justice Patel attempts to clarify in at least two ways. FirstRajagopal cites both Sullivan and Reynolds, which lay down very different tests, but does not specify which of them it is adopting. Justice Patel clarifies that he is adopting the latter. SecondlyRajagopal is entirely unclear about the issue of burdens. Under the Sullivan test, the burden of showing that the defendant acted with reckless disregard of the facts is upon the plaintiff. Under Reynolds, the burden of demonstrating reasonable verification of facts is upon the defendant. Justice Patel seems to adopt the latter, when he notes:

… where there is a factual demonstration of sufficient steps being taken to ascertain the ‘other side of the story’ and this opportunity, when presented, has been ignored, no more can be expected if it is also shown that the article when published was not unreasonable in its content, tone and tenor.”

In other words, insofar as a publication relates to a public official, public body or public figure, it is enough of a defence for the defendant to show that even if the publication is false in some respect, she acted only after a reasonable verification of the facts.

Unfortunately, much of the lucidity in the judgment so far is jeopardised in a rather unfortunate paragraph 26. Here, Justice Patel notes:

“For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.”

Unfortunately, just like Rajagopal did, this paragraph conflates two very distinct legal standards. “Actual malice” and “reckless embracing of falsehood” is the Sullivan test, which requires proof of either intentional lying, or reckless disregard of truth. “Good faith” and “reasonable belief” in truth is modeled upon the tests currently in vogue in Canada, the UK and South Africa. “Reasonableness” is one step below “recklessness”, and imposes an affirmative burden upon the publisher to take certain measures towards establishing the truth of her claims. There is a further issue with the use of “qualified privilege” without explaining what, precisely, it means. Qualified privilege has now been statutorily abolished in the United Kingdom, and carries a very different meaning in Australia (applicable to statements on matters of political importance).

It is also a little unfortunate that the judgment makes very little mention of the appropriate legal standards to be followed in deciding upon an injunction in a defamation case. The High Courts of Delhi and Bombay have taken opposite views on the issue. The correct position at common law was laid down long ago in Bonnard vs Perryman, and prohibits the grant of an injunction unless it can be shown that the defendant has almost no chance of success at trial. In an otherwise erudite judgment, the failure to deal with the common law precedent directly on point is disappointing.

As an aside, it may also be noted that this judgment has an ancillary effect upon the criminal defamation challenge that has been reserved by a two-judge Bench of the Supreme Court. In affirming that civil defamation law allows for false defamatory statements to escape liability as long as they have been made after reasonable verification, it is once again established that Indian defamation law is unique in that, as it stands, criminal defamation is more stringent than civil defamation. It is to be hoped that this fact will be considered by the Supreme Court in deciding whether to strike down or read down Sections 499 and 500 of the IPC.

To sum up: Justice Patel’s judgment is significant in that it extends the higher threshold of defamation from public officials to all public figures or public bodies. It also seems adopts the Reynolds defence of reasonable verification of facts in case of false defamatory statements, with its attendant evidentiary burdens. Depending on how you read Rajagopal, this may or may not be correct. In any event, it is important to note, once more, that Sullivan (actual malice) is not equivalent to the reasonableness standard, but is considerably more speech-protective. We still await clarity for which of those standards is to be adopted under Indian civil defamation law.