In what amounts to disregard for constitutional values and the sanctity of elections, a Bengaluru court has favoured advocate and debutant BJP candidate for Bangalore South, Tejasvi Surya, with an ex parte temporary injunction against the publication of “defamatory statements” in 49 print, television and internet media providers, including international carriers like YouTube. The injunction will be in place until May 27, when these media houses are heard.
The results of the general election would have been declared by then, and a new government may have been formed. The injunction, therefore, has a chilling effect on the press at a crucial time, robs voters of information, and thereby interferes with the election. But it appears that applications for temporary injunctions are routinely entertained by Karnataka courts. They have restrained coverage of a ponzi scheme, an allegation of sexual harassment, a controversial suicide and the discovery of child pornography on a civil servant’s hard drive. BJP MP and businessman Rajeev Chandrasekhar filed two suits against The Wire in 2017 over articles alleging conflict of interest between his political and business careers — the ex parte restraint was lifted in February.
To entertain applications for injunctions, the lower courts in Bangalore rely upon a 1986 order of the Karnataka High Court (AK Subbaiah vs BN Garudachar), which bounded the freedom of speech by the duty not to harm others by one’s speech. However, the Supreme Court provides numerous overriding precedents, most notably Romesh Thapar vs State of Madras and Brij Bhushan vs State of Delhi. The apex court has taken an unambiguous position favouring the freedom of speech in its most important avatar: The freedom of the press, the fourth pillar of democracy. But the Karnataka injunctions amount to “prior restraint” — a term undefined in Indian law but clearly understood in the US courts, which are most vigilant in protecting free speech. Prior restraint is regarded as the most pernicious form of censorship, disbarring the dissemination of information about events which have not even happened.
In 2017, a Supreme Court bench led by Chief Justice J S Khehar and including Justice D Y Chandrachud, hearing a clutch of PILs, stated that it could not order pre-emptive strikes on the press. The courts can only hear complaints after publication. The freedom to express and publish protects Tejasvi Surya’s proudly pinned tweet: “If you are with Modi, you are with India. If you are not with Modi, then you are strengthening anti-India forces.” The Constitution that protects this hateful and divisive tweet is the same one that doesn’t allow gagging of the press. If only the young man knew.