Prior restraint: How gag order in Adani case flies in face of what SC has ruled

In a 2024 decision, the Supreme Court reiterated the Bonnard principle while overturning an ex parte ad interim injunction that had ordered Bloomberg to take down an article about Zee Entertainment.

The blanket gag order by a Delhi court on September 6 against journalist Paranjoy Guha Thakurta and other journalists and entities, restraining them from publishing alleged defamatory content on Adani Enterprises Limited (AEL), flies in the face of the threshold set by the top court.

On Thursday (September 18), a district court set aside the September 6 order following a challenge by four journalists, Ravi Nair, Abir Dasgupta, Ayaskanta Das and Ayush Joshi. Another district judge, hearing a separate appeal filed by Guha Thakurta, has now posted the matter to September 22.

In his September 6 order, Senior Civil Judge Anuj Kumar Singh had said: “The plaintiff is given opportunity to apply to intermediaries/concerned agencies with details of the URLs/posts/hyperlinks/articles on the basis of this order and intermediaries/ concerned agencies are directed to take down/remove the alleged defamatory articles/posts/URLs whereby the prime facie defamatory material is published against the plaintiffs within 36 hours, however they shall preserve the contents and record till further orders from this Court.”

Essentially, the trial court, in allowing the AEL to identify further hyperlinks for takedown within 36 hours, delegates significant power to curate public information about itself before a final judicial determination. Armed with this order, the government is learnt to have issued several takedown orders. However, none of the allegedly defamatory content was examined in court.

The lower court’s order also restrains Guha Thakurta and other journalists from publishing or distributing any “unverified, unsubstantiated and ex facie defamatory reports” about the plaintiff. This “prior restraint”, which prevents publication before a full trial can determine whether the content is actually defamatory, has been held as an unconstitutional restriction on the fundamental right guaranteed under Article 19(1)(a) of the Constitution.

Restrictions on free speech have to be found under Article 19(2) of the Constitution which lists out the “reasonable restrictions” that include interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, and incitement to an offence.

Legislations that impose a prior restraint on speech usually have a heavy burden to show that the reason for such restraint can be found under Article 19(2).

In a defamation case, truth and fair comment on issues of public interest are lawful defences. Therefore, hearing the respondent becomes crucial as only the journalist can offer these defences.

The SC, in the Bloomberg decision, had also established a high threshold for granting ex parte injunctions in free speech cases, criticising the trial court for granting such orders without proper justification. The Court underlined that such orders must be granted only when not granting them would cause “greater injustice” than granting them.

“In essence, the grant of a pre-trial injunction against the publication of an article may have severe ramifications on the right to freedom of speech of the author and the public’s right to know. An injunction, particularly ex parte, should not be granted without establishing that the content sought to be restricted is ‘malicious’ or ‘palpably false’. Granting interim injunctions, before the trial commences, in a cavalier manner results in the stifling of public debate. In other words, courts should not grant ex parte injunctions except in exceptional cases where the defence advanced by the respondent would undoubtedly fail at trial,” the top court had said in the Bloomberg case.