The Bengaluru civil court’s blanket order restraining 49 newspapers, television channels and other media outlets from publishing anything ‘defamatory’ about Tejasvi Surya, the BJP’s candidate for the Bengaluru South Lok Sabha constituency, is contrary to the law and the Constitution. The temporary injunction violates the basic principle in free speech law that bars ‘prior restraint’ or pre-censorship of any publication, including the media. As recently as in 2017, a Supreme Court Bench made it clear that pre-broadcast or pre-publication regulation of content was not in the court’s domain. In R. Rajagopal (1994), the court noted that there is no law that authorises prior restraint. The existence of a prima facie case is a precondition for an interim injunction, and a restraining order may be obtained only if some material deemed defamatory has been published, and when further publication ought to be prevented. Arraying print and electronic media outlets that had not previously disseminated anything defamatory about an individual fails this test, rendering any injunctions obtained against them illegal. Judge Dinesh Hegde’s order takes note of two factors in granting Mr. Surya’s request for an injunction: that some allegations against him surfaced after he filed his nomination papers, and “some defamatory messages” against him “are in transit” in the media. He cites a 1986 Karnataka High Court decision, but misses the point that the High Court’s justification for an injunction concerned an individual who had made public utterances about the plaintiff, and it was not an omnibus order against a class of persons. In any case, there is enough case law from the Supreme Court to bar prior restraint orders.
The allegations that have aggrieved Mr. Surya seem to originate in an individual’s opinion on him on Twitter. It is possible that this piece of information was or is likely to be used against him by his electoral rivals. However, this cannot be a reason for a public figure — and a candidate of a major political party, even a debutant, is definitely one — to claim a right to gag the entire media from writing about him. Even if the argument is that the order only prevents ‘defamatory’ content and not responsible reporting or criticism, that doesn’t justify a judicial gag order, as it may be used to prevent the media from writing anything adverse to his campaign. It may also prevent defendants in a future proceeding from using ‘publication of the truth in the public interest’ as a defence. Requests for omnibus restraining orders against media outlets seem to find favour with some civil judges in Karnataka. This newspaper itself faces in Karnataka around a hundred petitions for injunction filed by individuals and entities, most of them unlikely to be mentioned in its columns ever. The Karnataka High Court or the Supreme Court must examine this trend and strike down such blanket gag orders.