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TMI Blog2024 (5) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sanskriti Shrimali, Adv. Mr. Keshav Sehgal, Adv. Mr. Dhruv Sharma, Adv. Mr. Raghav Agarwal, Adv. Mr. Utkarsh Pratap, Adv Mr. Lavish Bhambhani, Adv. Mr. Harshvardhan Thakur, Adv. Ms. Suvangana Agrawal, Adv. For the Respondent(s) : Mr. Mahesh Agarwal, Adv. Ms. Madhavi Agarwal, Adv. Mr. Shashwat Singh, Adv. Mr. E.C. Agrawala, AOR JUDGMENT DR DHANANJAYA Y CHANDRACHUD, CJI 1. Leave granted. 2. On 01 March 2024, an ex-parte ad interim order was passed by the ADJ 05 of the South Saket Courts, New Delhi ["trial Judge"] directing the appellants (a media platform, one of its editors, and the concerned journalists) to take down an article dated 21 February 2024 published on their online platform within a week. The appellants were also restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Order"] The Single Judge of the High Court seems to have had doubts about the maintainability of the appeal, but that point need not be laboured any further having regard to the provisions of Order XLIII of the Code of Civil Procedure 1908. 5. The three-fold test of establishing (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss or harm, for the grant of interim relief, is well-established in the jurisprudence of this Court. This test is equally applicable to the grant of interim injunctions in defamation suits. However, this three-fold test must not be applied mechanically, [Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, para 38.] to the detriment of the other party and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-parte injunction to show utmost good faith in making the application. (f) even if granted, the ex-parte injunction would be for a limited period of time. (g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court." 7. Significantly, in suits concerning defamation by media platforms and/or journalists, an additional consideration of balancing the fundamental right to free speech with the right to reputation and privacy must be borne in mind. [R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.] The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be defamatory of Mr. Fraser, it is clear he cannot get an injunction. The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since (Bonnard v. Ferryman 1891 2 Ch. 269). 'The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a Judge. But a better reason is the importance in the public interest that the truth should out. ..." (emphasis supplied) 9. In essence, the grant of a pre-trial injunction against the publication of an article may have severe ramifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sentence' to the material sought to be published, well before the allegations have been proven. While granting ad-interim injunctions in defamation suits, the potential of using prolonged litigation to prevent free speech and public participation must also be kept in mind by courts. 11. The order of the trial Judge does not discuss, even cursorily, the prima facie strength of the plaintiff's case, nor does it deal with the balance of convenience or the irreparable hardship that is caused. The trial Judge needed to have analysed why such an ex-parte injunction was essential, after setting out the factual basis and the contentions of the respondent made before the trial Judge. The trial Judge merely states, in paras 7-8, that the court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the grant of an injunction was duly established after an evaluation of facts. The same error which has been committed by the trial Judge has been perpetuated by the Single Judge of the High Court. Merely recording that a prima facie case exists, that the balance of convenience is in favour of the grant of injunction and that an irreparable injury would be caused, would not amount to an application of mind to the facts of the case. The three-fold test cannot merely be recorded as a mantra without looking into the facts on the basis of which an injunction has been sought. In the absence of such a consideration either by the trial Judge or by the High Court, we have no option but to set aside both the orders of the trial Judge dated 1 Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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