Supreme Court raises concern over the rich gagging media

Courts must tread cautiously while granting pre-trial interim injunctions, the Bench said, advising judges to follow the three-fold test to decide on such interventions before a full-fledged trial

March 26, 2024 11:28 pm | Updated March 27, 2024 12:20 am IST - NEW DELHI

File Photo of the Supreme Court of India.

File Photo of the Supreme Court of India. | Photo Credit: S. Subramanium

The Supreme Court has highlighted the problem of the affluent getting pre-trial injunctions from courts against the media and civil society, gagging free speech and the public’s right to information about important affairs.

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said such ex-parte interim injunctions granted by courts rather mechanically spell a death sentence to journalistic stories even before the allegations against them are proven right, if ever.

“The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions,” the top court said.

The Bench drew the spotlight on the phenomenon of ‘SLAPP suits’ or ‘Strategic Litigation against Public Participation’ gaining attention across jurisdictions.

“It is an umbrella term used to refer to litigation predominantly initiated by entities that wield immense economic power against members of the media or civil society, to prevent the public from knowing about or participating in important affairs in the public interest,” the court noted.

With ex-parte injunction preventing a media outlet from publishing the article or material anytime soon or even in the distant future, a case — which could include expensive allegations of libel by the cash-rich entity against the media or civil society — tends to drag on.

“We must be cognisant of the realities of prolonged trials. The grant of an interim injunction, before the trial commences, often acts as a ‘death sentence’ to the material sought to be published, well before the allegations have been proven,” the Supreme Court noted.

The three-judge Bench cautioned judges about how ad-interim injunctions in defamation suits, followed by prolonged litigation, harm free speech and public participation.

The Bench said courts should grant pre-trial injunctions only in exceptional cases. For others, an injunction against the publication of material should be granted only after the conduct of a full-fledged trial.

The top court said judges should follow the three-fold test of establishing a prima facie case, examine the balance of convenience and see whether irreparable loss or harm would be caused to the applicant in a defamation case, before ordering a pre-trial injunction of a journalistic article.

“The three-fold test must not be applied mechanically, to the detriment of the other party and in the case of injunctions against journalistic pieces, often to the detriment of the public... The court must provide detailed reasons and analyse how the three-fold test is satisfied,” the three-judge Bench of the Supreme Court directed.

The importance of leaving free speech unfettered is a strong reason for dealing most cautiously and warily with the granting of interim injunctions, the court underscored.

The order is based on an appeal filed by Bloomberg Television Production Services challenging an ex-parte ad interim order passed by a District Court in Delhi in March 2024 directing it to take down an article published on their online platform.

The local court had also restrained the media outlet from posting, circulating or publishing the article on any online or offline platform till the next date of hearing.

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