Karnataka High Court
Sri S Basavaraj vs Bar Council Of India on 27 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
R
Reserved on : 10.09.2024
Pronounced on : 27.09.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.11480 OF 2024 (GM - RES)
BETWEEN:
SRI S.BASAVARAJ
S/O LATE M.SIDDARAMAIAH,
AGED ABOUT 59 YEARS,
SENIOR ADVOCATE AND MEMBER,
KARNATAKA STATE BAR COUNCIL,
HAVING OFFICE AT NO.11,
2ND FLOOR, JEEVAN BUILDINGS,
KUMARA PARK EAST,
BENGALURU - 560 001.
... PETITIONER
(BY SRI GOUTHAM A.R., ADVOCATE)
AND:
1. BAR COUNCIL OF INDIA
NO.21, ROUSE AVENUE INSTITUTIONAL AREA,
NEAR BAL BHAWAN,
NEW DELHI - 110 002.
BY ITS SECRETARY.
2
2. MR. VISHALA RAGHU,
AGED MAJOR,
CHAIRMAN,
KARNATAKA STATE BAR COUNCIL,
DR. AMBEDKAR ROAD,
BENGALURU - 560 001.
3. MR. VINAY MANGLEKAR,
AGED MAJOR,
VICE CHAIRMAN,
KARNATAKA STATE BAR COUNCIL,
DR. AMBEDKAR ROAD,
BENGALURU - 560 001.
... RESPONDENTS
(BY R-1 SERVED AND UNREPRESENTED;
SRI UDAYA HOLLA, SR.ADVOCATE A/W
SRI T.G.RAVI, ADVOCATE FOR R-2 AND R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ENTIRE
PROCEEDINGS INITIATED BY THE R1 VIDE LETTER DATED
12/04/2024 BEARING NO. BCI.D.1712/2024 PASSED BY THE R1
ORIGINAL PRODUCED AND MARKED AS ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.09.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, a practicing Advocate is knocking at the doors
of this Court calling in question proceedings initiated by the 1st
respondent in terms of its communication dated 12-04-2024 by
which certain restrictions are imposed upon the practice of the
petitioner.
2. Heard Sri A.R. Goutham, learned counsel appearing for the
petitioner and Sri Udaya Holla, learned senior counsel appearing for
respondents 2 and 3.
3. Facts, in brief, germane are as follows:-
The 1st respondent/Bar Council of India is a statutory body
constituted under Section 4 of the Advocates Act, 1961 ('the Act'
for short). Respondents 2 and 3 are Chairman and Vice-Chairman
of the Karnataka State Bar Council, a Council constituted under
Section 3 of the Act. The functions of the State Bar Council are as
enumerated under Section 6 of the Act. Internal management and
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self governance are the facets of the enumeration under Section 4.
The functions of the Bar Council of India are defined under Section
7 of the Act which includes general supervision and control over the
State Bar Council. Certain facts which triggered registration of
crime against respondents 2 and 3 in which the present petitioner is
the constituent require to be succinctly observed. In the month of
August 2023, the Karnataka State Bar Council had organized a
State Level Advocates Conference at Mysuru. Claiming certain
expenditure to have been incurred which was not on record which
resulted in misappropriation of funds, the petitioner registered a
complaint against respondents 2 and 3. All these factors form a
part of the order passed in Criminal Petition No.3666 of 2024.
4. After registration of the crime by the petitioner against
respondents 2 and 3, it is the averment in the petition that forces
inimical to him have dragged the petitioner, before the 1st
respondent/Bar Council of India. When the cup of allegation, was
brewing, it appears that a letter is sent by a former Chairman on
05-04-2024 to the Bar Council of India. Based upon the said letter,
the 1st respondent passes the impugned order on 12-04-2024 and
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communicates it to the Secretary, Karnataka Bar Council.
Challenging the said order, the subject petition is preferred. By the
time the petition was filed, a crime had been registered by the
petitioner, which had become a crime in Crime No.37 of 2024 for
offences punishable under Sections 34, 37, 120B, 403, 406, 409,
420, 465, 468, 471 and 477A of the IPC. The crime so registered in
Crime No.37 of 2024 becomes the subject matter of Criminal
Petition No.3666 of 2024. The communication of the Bar Council of
India becomes the challenge in the subject petition.
5. The learned counsel for the petitioner Sri A.R. Goutham
would vehemently contend that the Bar Council of India has no
power to pass gag orders, as is passed in the case at hand. The
fundamental right of the petitioner, right to speech is taken away
by this order. Therefore, he would submit that, on the face of it, the
impugned order being contrary to and violative of the fundamental
right of the petitioner, should not be permitted to remain. He
would seek the writ petition be allowed.
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6. The 1st respondent/Bar Council of India, though served
remains unrepresented.
7. The learned senior counsel for respondents 2 and 3 would
submit that they have nothing to do with the squabble between the
Bar Council of India and the petitioner, it is on a communication
sent by the ex-Chairman of the Bar Council the impugned action is
taken. Therefore, they would leave the decision to the Court.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated facts are not in dispute. The issue lies
in a narrow compass. The factum of the issue leading to registration
of a crime in Crime No.37 of 2024 need not be gone into in detail.
The observations made in the course of the order would suffice.
This order revolves around a communication dated 12-04-2024
under which the order dated 08-04-2024 of the 1st respondent is
communicated. It reads as follows:
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"I have carefully considered the concerns raised in the letter
dated 05-04-2024 sent by Shri Anand Kumar. A. Magadum, Ex-
Chairman and Member, Karnataka State Bar Council, Anand"
Manjunath Layout, Shivagiri, Dharwad, Karnataka regarding
allegations of mismanagement and corruption in the expenditure
incurred during the State Level Advocates Conference organized
by the Karnataka State Bar Council in August 2023.
Given the gravity of the allegations and the potential
impact on the reputation and integrity of the Karnataka
State Bar Council, as well as the members involved, I
deem it fit to take immediate action to address the matter
in a fair and transparent manner.
In accordance with the principles of natural justice and
procedural fairness, I hereby order the establishment of a 3
member Committee comprising Hon'ble Mr. Apurba Kumar
Sharma, Senior Advocate, Chairman, Executive Committee,
Hon'ble Dr. Amit Vaid, and Hon'ble Mr. Bhakta Bhushan Barik,
member, Bar Council of India to conduct a thorough inquiry into
the allegations raised. The Committee will investigate into the
allegations of misconduct and defamation being circulated on
social media platforms and WhatsApp groups against the
Chairman and Vice-Chairman of the Karnataka State Bar
Council. The Committee shall endeavour to identify the
individuals responsible for disseminating false or defamatory
information and recommend appropriate disciplinary action
against them.
The Secretary of the Karnataka State Bar Council is directed to
promptly furnish all relevant documents, receipts, and financial
records pertaining to the expenditure incurred during the State
Level Conference within a period of 15 days. This will facilitate a
comprehensive audit of the financial transactions and help
ascertain whether any irregularities or mismanagement have
occurred.
I authorize the conduct of an audit here at the Bar Council of
India by a qualified Chartered Accountant, to be appointed by
the Committee to ensure the integrity and transparency of the
audit process.
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Pending the outcome of the inquiry proceedings, I hereby
order a temporary restraint/gag on all Members of the
Karnataka State Bar Council or any Advocate from making
any further public statements or spreading any
information related to the expenditure incurred during
the State Level Conference. The Members of the Bar
Council of Karnataka should endeavour to ensure the
same. This measure is necessary to prevent further
damage to the reputation and integrity of the Bar Council
pending the completion of the investigation.
I trust that the Committee will conduct its inquiry diligently and
impartially, adhering strictly to the principles of natural justice
and procedural fairness. The Bar Council of India remains
committed to upholding the highest standards of integrity and
accountability within the legal profession, and I am confident
that this inquiry will help restore public confidence in the
Karnataka State Bar Council.
The Bar Council of India will take all necessary steps to address
the concerns raised in this matter.
Sd/- Chairman,
Bar Council of India."
(Emphasis added)
This is an order from the Chairman, Bar Council of India
communicated to the State Bar Council. It is directed in the said
order that the Secretary of the State Bar Council to promptly
furnish all relevant documents, receipts and financial records
pertaining to the expenditure incurred within 15 days. The Bar
Council of India has also authorized an audit to be conducted by a
qualified Chartered Accountant. Pending outcome of the enquiry
proceedings, the Chairman, Bar Council of India passes a
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restraint/gag order on all members of the State Bar Council or any
Advocate from making any further public statements or spreading
any information related to the incident. This measure is sought to
be opined as necessary to prevent further damage to the reputation
and integrity of the Bar Council. As observed hereinabove, this is
the communication of the Chairman's order dated 08-04-2024.
10. The issue now would be, whether the Chairman of the Bar
Council of India is empowered to pass such gag orders against the
fraternity of Advocates at large, ordering them not to speak
anything. This, on the face of it, would amount to imposing a
restraint on the speech of the Advocates. The direction, in the
communication, is not against any particular individual, but against
the community of Advocates itself, as the words deployed are "I
hereby order a temporary restraint/gag on all Members of
the Karnataka State Bar Council or any Advocate from
making any further public statements...." The said gag order is
the kernel of this conundrum.
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11. Since the gag order is issued by the 1st respondent, I
deem it appropriate to notice the power, if any, to issue such gag
orders emanating from the statute. Section 4 deals with
constitution of the Bar Council of India. It reads as follows:
"4. Bar Council of India.--(1) There shall be a Bar
Council for the territories to which this Act extends to be known
as the Bar Council of India which shall consist of the following
members, namely:--
(a) the Attorney-General of India, ex officio;
(b) the Solicitor-General of India, ex officio;
(c) one member elected by each State Bar Council from
amongst its members.
(1-A) No person shall be eligible for being elected as a
member of the Bar Council of India unless he possesses the
qualifications specified in the proviso to sub-section (2) of
Section 3.]
(2) There shall be a Chairman and a Vice-Chairman of the
Bar Council of India elected by the Council in such manner as
may be prescribed.
(2-A) A person holding office as Chairman or as Vice-
Chairman of the Bar Council of India immediately before the
commencement of the Advocates (Amendment) Act, 1977 (38
of 1977), shall, on such commencement, cease to hold office as
Chairman or Vice-Chairman, as the case may be:
Provided that such person shall continue to carry on the
duties of his office until the Chairman or the Vice-Chairman, as
the case may be, of the Council, elected after the
commencement of the Advocates (Amendment) Act, 1977 (38
of 1977), assumes charge of the office.
(3) The term of office of a member of the Bar Council of
India elected by the State Bar Council shall--
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(i) in the case of a member of a State Bar Council who
holds office ex officio, be two years from the date of
his election or till he ceases to be a member of the
State Bar Council, whichever is earlier; and
(ii) in any other case, be for the period for which he
holds office as a member of the State Bar Council:
Provided that every such member shall continue to hold
office as a member of the Bar Council of India until his
successor is elected."
Section 7 deals with the functions of the Bar Council of India and
it reads as follows:
"7. Functions of Bar Council of India.--(1)] The
functions of the Bar Council of India shall be--
(a) * * *
(b) to lay down standards of professional conduct and
etiquette for advocates;
(c) to lay down the procedure to be followed by its
disciplinary committee and the disciplinary committee
of each State Bar Council;
(d) to safeguard the rights, privileges and interests of
advocates;
(e) to promote and support law reform;
(f) to deal with and dispose of any matter arising under
this Act, which may be referred to it by a State Bar
Council;
(g) to exercise general supervision and control over
State Bar Councils;
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(h) to promote legal education and to lay down standards
of such education in consultation with the Universities
in India imparting such education and the State Bar
Councils;
(i) to recognise Universities whose degree in law shall be
a qualification for enrolments as an advocate and for
that purpose to visit and inspect Universities or cause
the State Bar Councils to visit and inspect Universities
in accordance with such directions as it may give in
this behalf;
(i-a) to conduct seminars and organise talks on legal topics
by eminent jurists and publish journals and papers of
legal interest;
(i-b) to organise legal aid to the poor in the prescribed
manner;
(i-c) to recognise on a reciprocal basis foreign qualifications
in law obtained outside India for the purpose of
admission as an advocate under this Act;
(j) to manage and invest the funds of the Bar Council;
(k) to provide for the election of its members;
(l) to perform all other functions conferred on it by or
under this Act;
(m) to do all other things necessary for discharging the
aforesaid functions.
(2) The Bar Council of India may constitute one or
more funds in the prescribed manner for the purpose of--
(a) giving financial assistance to organise
welfare schemes for indigent, disabled or
other advocates;
(b) giving legal aid or advice in accordance with
the rules made in this behalf;
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(c) establishing law libraries.
(3) The Bar Council of India may receive any grants,
donations, gifts or benefactions for all or any of the purposes
specified in sub-section (2) which shall be credited to the
appropriate fund or funds constituted under that sub-
section."
(Emphasis supplied)
Section 7(1)(g) empowers the Bar Council of India, to have general
supervision and control over the State Bar Councils. General
supervision and control, in the considered view of the Court, would
not clothe with any power to the Bar Council of India, to pass such
gag orders, restraining the speech of Advocates or even the
members of the Bar Council, as it is general supervision and control
and not control over the speaking of Advocates.
12. Under what circumstances gag orders can be issued and
by whom, need not detain this Court for long or delve deep into the
matter. The Apex Court in the case of ROMESH THAPPAR V.
STATE OF MADRAS1 has held as follows:
"12. We are therefore of the opinion that unless a law
restricting freedom of speech and expression is directed solely
1
1950 SCC OnLine SC 19
14
against the undermining of the security of the State or the
overthrow of it, such law cannot fall within the reservation under
clause (2) of Article 19, although the restrictions which it seeks
to impose may have been conceived generally in the interests of
public order. It follows that Section 9(1-A) which authorises
imposition of restrictions for the wider purpose of securing
public safety or the maintenance of public order falls outside the
scope of authorised restrictions under clause (2), and is
therefore void and unconstitutional."
The Apex Court in the case of TATA SONS LIMITED V.
GREENPEACE INTERNATIONAL2, has held as follows:
"36. It must not be forgotten that the Court is, at
this stage, merely weighing the arguments of parties
without the benefit of rival evidence, made available after
trial. While the plaintiff has been able to show that the
relevant statutory clearances for the port project were
available, at the same time, the defendant has placed on
record the circumstance that the projects likely ecological
adverse impact on Olive Ridley turtles has been spoken
about by environmental experts, and is also subject
matter of an intervention proceeding. The matter was
also referred to the Central Empowered Committee.
These justify the defendant's position that there is
another opinion, counter to that of the statutory
authorities. If that is the case, the game is an instance
where the defendant creatively (or reprehensively,
depending from what is the perspective of the viewer)
seeks to highlight the plight of the Olive Ridley turtles.
The use of the TATA mark and logo, as demonic, is, in
that context, prima facie exaggerative or hyperbolic, in
respect of matters of public concern.
37. This Court next proposes to discuss the
plaintiff's argument that since the Internet domain or
2
2011 SCC OnLine Del 466
15
medium has a wider viewership, and is more readily
accessible than other modes on which speech is
expressed, the likelihood of injury if injunction is refused,
is greater, and it is consequently, a significant factor to
be dealt with, while weighing balance of convenience and
irreparable hardship. The most relevant judgment relied upon
by the plaintiff for this purpose, is the one of the Ontario Court
of Appeals, in Barrick Gold Corp. The Court had observed that:
"Communication via the Internet is instantaneous, seamless, inter-
active, blunt, borderless and far-reaching. It is also impersonal, and
the anonymous nature of such communications may itself create a
greater risk that the defamatory remarks are believed : see
Vaquero Energy Ltd. v. Weir, [2004] A.J. No. 84 (Alta. Q.B.) at
para. 17.
[32] These characteristics create challenges in the libel context.
Traditional approaches attuned to "the real world" may not respond
adequately to the realities of the Internet world. How does the law
protect reputation without unduly overriding such free wheeling
public discourse? Lyrissa Barnett Lidsky discusses this conundrum in
her article, "Silencing John Doe : Defamation and Discourse in
Cyberspace", (2000) 49 Duke L.J. 855 at pp. 862-865:
Internet communications lack this formal distance. Because
communication can occur almost instantaneously, participants in
online discussions place a premium on speed. Indeed, in many fora,
speed takes precedence over all other values, including not just
accuracy but even grammar, spelling, and punctuation. Hyperbole
and exaggeration are common, and "venting" is at least as common
as careful and considered argumentation. The fact that many
Internet speakers employ online pseudonyms tends to heighten this
sense that "anything goes," and some commentators have likened
cyberspace to a frontier society free from the conventions and
constraints that limit discourse in the real world. While this view is
undoubtedly overstated, certainly the immediacy and informality of
Internet communications may be central to its widespread appeal.
Although Internet communications may have the ephemeral
qualities of gossip with regard to accuracy, they are communicated
through a medium more pervasive than print, and for this reason
they have tremendous power to harm reputation. Once a message
enters cyberspace, millions of people worldwide can gain access to
it. Even if the message is posted in a discussion forum frequented
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by only a handful of people, any one of them can republish the
message by printing it or, as is more likely, by forwarding it
instantly to a different discussion forum. And if the message is
sufficiently provocative, it may be republished again and again. The
extraordinary capacity of the Internet to replicate almost endlessly
any defamatory message lends credence to the notion that "the
truth rarely catches up with a lie". The problem for libel law, then, is
how to protect reputation without squelching the potential of the
Internet as a medium of public discourse [emphasis added].
[33] These characteristics differentiate the publication of
defamatory material on the Internet from publication in the more
traditional forms of media, in my opinion.
[34] It is true that in the modern era defamatory material may be
communicated broadly and rapidly via other media as well. The
international distribution of newspapers, syndicated wire services,
facsimile transmissions, radio and satellite television broadcasting
are but some examples. Nevertheless, Internet defamation is
distinguished from its less pervasive cousins, in terms of its
potential to damage the reputation of individuals and corporations,
by the features described above, especially its interactive nature, its
potential for being taken at face value, and its absolute and
immediate worldwide ubiquity and accessibility. The mode and
extent of publication is therefore a particularly significant
consideration in assessing damages in Internet defamation cases.
... ... ...
[44] Secondly, the motions judge failed to appreciate, and in my
opinion misjudged, the true extent of Mr. Lopehandia's target
audience and the nature of the potential impact of the libel in the
context of the Internet. She was alive to the fact that Mr.
Lopehandia "[had] the ability, through the Internet, to spread his
message around the world to those who take the time to search out
and read what he posts" and indeed that he had "posted messages
on many, many occasions". However, her decision not to take the
defamation seriously led her to cease her analysis of the Internet
factor at that point. She failed to take into account the distinctive
capacity of the Internet to cause instantaneous, and irreparable,
damage to the business reputation of an individual or corporation by
reason of its interactive and globally all-pervasive nature and the
characteristics of Internet communications outlined in paragraphs
28-33 above.
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[45] Had the motions judge taken these characteristics of the
Internet more fully into account, she might well have recognized
Barrick's exposure to substantial damages to its reputation by
reason of the medium through which the Lopehandia message was
conveyed..."
Does internet use, for posting or publishing
libellous material, call for a different standard - especially
in considering a plaintiff's claim for temporary injunction,
is the question this Court has to address in the light of
the plaintiff's submission. Now, speech (or expression)
can be in any form - printed, spoken, articulated through
drama, poetry, mime, parody, or the like. The speaker can
choose any medium he wishes to subject to its
availability. Thus, material can be published in books,
newspapers, magazines, or the underlying work
performed in theatre, or films, or recited, or even sung. It
can be recorded, and digitally stored in discs, tapes, and
played or performed (or viewed) publicly or privately,
later. Similarly, the content of articles or the views of
someone can be broadcast over radio, or television, and
repeatedly broadcast. The viewership of each of these or
the public accessing the content through these varied
mediums can differ, depending on taste, cost, inclination,
and so on. One generalization, which can safely be made,
is that any publication or broadcast in the electronic
media, especially on television, would have greater
viewership, and more ready impact, since the effect is felt
audio visually. In the case of printed matter, the reader
has to go through, comprehend and assimilate the
content.
38. In law, the essence of defamation is its tendency to
through the defendant's statement, lower the plaintiff's
reputation in the eyes of others. Four requirements for liability
for defamation, are to be satisfied. The first is a false and
defamatory statement must be made about another's reputation
or business. What is necessary in a case of defamation is that
the statement made is understood by others to be "of or
concerning" the plaintiff. The publication should be made out to
a third party. Generally, there is no liability if the defendant did
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not intend the publication to be viewed by anyone other than
the plaintiff. The plaintiff must establish some extent of fault or
negligence on the part of the defendant in publishing the
statements. A plaintiff who is a public figure will have to show
that the statements were made out of malice. The burden of
proof is less demanding in case of a private individual. The
statements must result in actual or presumed damage.
39. It would be apparent from the above discussion
that publication is a comprehensive term, embracing all
forms and mediums - including the Internet. That an
internet publication has wider viewership, or a degree of
permanence, and greater accessibility, than other fixed
(as opposed to intangible) mediums of expression does
not alter the essential part, i.e. that it is a forum or
medium. Even the Ontario Court of Appeals, in Barrick
Gold, while recognizing the wider impact and reach of
cyber libel, did not moot a different standard for granting
injunction, as is sought in this case. The Court there
ruled, pertinently, that Internet publication of a libel,
because of the libel's wider reach and viewership, has to
be considered as an additional factor, while assessing
damages. However, the judgment is not an authority to
say that internet libels or cyber libels call for application
of a different injunction standard, other than the Bonnard
rule. The Court does not discern any such discussion; adopting
such an argument would result in the anomaly of discriminating
between one medium of expression and another, in assessing
whether to grant temporary injunction restraining publication -
which is neither salutary, or as this Court suspects,
Constitutionally sanctioned. In law, publication of a libel even to
one is sufficient to impel a suit for damages; the wider reach of
the publication or its greater accessibility is perhaps a ground
for assessing the degree of damages. Formulating and adopting
any other approach would result in disturbing the balance
between free speech and the interest of any individual or
corporate body in restraining another from discussing matters of
concern, so finely woven in the texture of the Bonnard ruling.
... ... ...
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43. In conclusion the Court notes that the rule in
Bonnard is as applicable in regulating grant of injunctions
in claims against defamation, as it was when the
judgment was rendered more than a century ago. This is
because the Courts, the world over, have set a great
value to free speech and its salutary catalyzing effect on
public debate and discussion on issues that concern
people at large. The issue, which the defendant's game
seeks to address, is also one of public concern. The Court
cannot also sit in value judgment over the medium (of
expression) chosen by the defendant since in a
democracy, speech can include forms such as caricature,
lampoon, mime parody and other manifestations of wit.
The defendant may - or may not be able to establish that
there is underlying truth in the criticism of the Dhamra
Port Project, and the plaintiff's involvement in it. Yet, at
this stage, the materials on record do not reveal that the
only exception - a libel based on falsehood, which cannot
be proven otherwise during the trial-applies in this case.
Therefore, the Court is of opinion that granting an
injunction would freeze the entire public debate on the
effect of the port project on the Olive Ridley turtles'
habitat. That, plainly would not be in public interest; it
would most certainly be contrary to established
principles. To recall the words of Walter Lippman
"The theory of the free press is not that the truth will be
presented completely or perfectly in any one instance, but
that the truth will emerge from free discussion"
For these reasons, the Court is of opinion that the application
for interim injunction, i.e. IA No. 9089/2010 has to fail. It is
accordingly, dismissed."
(Emphasis supplied)
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In the case of ANURADHA BHASIN V. UNION OF INDIA3, the
Apex Court has held as follows:
"40. The study of the aforesaid case law points to
three propositions which emerge with respect to Article
19(2) of the Constitution. (i) Restriction on free speech
and expression may include cases of prohibition. (ii)
There should not be excessive burden on free speech
even if a complete prohibition is imposed, and the
Government has to justify imposition of such prohibition
and explain as to why lesser alternatives would be
inadequate. (iii) Whether a restriction amounts to a
complete prohibition is a question of fact, which is
required to be determined by the Court with regard to the
facts and circumstances of each case. [Refer to State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8
SCC 534] .]
... ... ...
160.2. We declare that the freedom of speech and
expression and the freedom to practise any profession or
carry on any trade, business or occupation over the
medium of internet enjoys constitutional protection
under Article 19(1)(a) and Article 19(1)(g). The
restriction upon such fundamental rights should be in
consonance with the mandate under Articles 19(2) and
(6) of the Constitution, inclusive of the test of
proportionality.
... ... ...
160.11. The power under Section 144 CrPC cannot
be used to suppress legitimate expression of opinion or
grievance or exercise of any democratic rights."
(Emphasis supplied)
3
(2020) 3 SCC 637
21
The Apex Court in the case of MOHAMMED ZUBAIR v. STATE OF
NCT OF DELHI 4 has held as follows:
".... ... ....
21. Essentially, the allegations against the petitioner
pertain to the tweets which have been put out by him. The three
notices issued by Police Stations at Hathras Kotwali, Sikandra
Rao, and Khairabad under Section 91 CrPC are verbatim the
same. Having found from the record that the petitioner has
been subjected to a sustained investigation by the Delhi Police,
we find no reason or justification for the deprivation of the
liberty of the petitioner to persist any further. Consequently, we
are of the view that the petitioner must be released on interim
bail in each of the FIRs which forms the subject matter of these
proceedings, under Article 32 of the Constitution. The existence
of the power of arrest must be distinguished from the exercise
of the power of arrest. The exercise of the power of arrest must
be pursued sparingly. In the present case, there is absolutely no
justification to keep the petitioner in continued custody any
further and to subject him to an endless round of proceedings
before diverse courts when the gravamen of the allegations in
each of the said FIRs arises out of the tweets which have been
put out by the petitioner, and which also form the subject
matter of the investigation being conducted by the Delhi Police
in FIR 172/2022.
22. In Arnab Ranjan Goswami v. Union of India,8 while
dealing with the issue of a multiplicity of proceedings and
harassment to the accused, a two judge bench of which one of
us (Dr DY Chandrachud) was a part, held:
"32. Article 32 of the Constitution constitutes a
recognition of the constitutional duty entrusted to this Court
to protect the fundamental rights of citizens. The exercise of
journalistic freedom lies at the core of speech and
expression protected by Article 19(1)(a). The petitioner is a
media journalist. The airing of views on television shows
4
2022 SCC OnLine SC 897
22
which he hosts is in the exercise of his fundamental right to
speech and expression under Article 19(1)(a). India's
freedoms will rest safe as long as journalists can
speak truth to power without being chilled by a threat
of reprisal. The exercise of that fundamental right is not
absolute and is answerable to the legal regime enacted with
reference to the provisions of Article 19(2). But to allow a
journalist to be subjected to multiple complaints and
to the pursuit of remedies traversing multiple states
and jurisdictions when faced with successive FIRs
and complaints bearing the same foundation has a
stifling effect on the exercise of that freedom. This will
effectively destroy the freedom of the citizen to know of the
affairs of governance in the nation and the right of the
journalist to ensure an informed society. Our decisions hold
that the right of a journalist under Article 19(1)(a) is no
higher than the right of the citizen to speak and express.
But we must as a society never forget that one cannot exist
without the other. Free citizens cannot exist when the news
media is chained to adhere to one position."
(emphasis supplied)
23. Further, this Court reiterated the role of courts in
protecting personal liberty and ensuring that investigations are
not used as a tool of harassment:
"60. [...] Courts must be alive to the need to
safeguard the public interest in ensuring that the due
enforcement of criminal law is not obstructed. The fair
investigation of crime is an aid to it. Equally it is the duty of
courts across the spectrum - the district judiciary, the High
Courts and the Supreme Court - to ensure that the criminal
law does not become a weapon for the selective harassment
of citizens. Courts should be alive to both ends of the
spectrum - the need to ensure the proper
enforcement of criminal law on the one hand and the
need, on the other, of ensuring that the law does not
become a ruse for targeted harassment. Liberty across
human eras is as tenuous as tenuous can be. Liberty
survives by the vigilance of her citizens, on the cacophony
of the media and in the dusty corridors of courts alive to the
rule of (and not by) law. Yet, much too often, liberty is a
casualty when one of these components is found wanting.
23
61. [...] The doors of this Court cannot be closed to a
citizen who is able to establish prima facie that the
instrumentality of the State is being weaponized for using
the force of criminal law. Our courts must ensure that
they continue to remain the first line of defense
against the deprivation of the liberty of citizens.
Deprivation of liberty even for a single day is one day
too many. We must always be mindful of the deeper
systemic implications of our decisions."
(emphasis supplied)
24. As regards the prayer for quashing of the FIRs, an
essential aspect of the matter which must be noticed at this
stage is that the investigation by the Special Cell of the Delhi
Police in FIR No 172/2022 pertains to offences of a cognate
nature to those which have been invoked in the FIRs which have
been lodged before the Police Stations in Uttar Pradesh. Before
this court can embark on an enquiry as to whether the FIRs
should be quashed, it is appropriate that the petitioner pursues
his remedies in accordance with the provisions of Article 226 of
the Constitution and/or section 482 of the CrPC. However, a fair
investigative process would require that the entirety of the
investigation in all the FIRs should be consolidated and
entrusted to one investigating authority. The overlap in the
FIRs, emanating as they do from the tweets of the petitioner,
only goes to emphasize the need for a consolidated, as opposed
to piece-meal investigation by a diverse set of law enforcement
agencies."
... ... ...
31. The counsel for the State of Uttar Pradesh attempted
to persuade this Court that the petitioner must be barred from
tweeting when he is on bail. Section 438(2) stipulates that the
High Court or the Court of Sessions can direct a person to be
released on conditional bail. The provision provides that the
Court shall impose conditions in the context of the facts of a
particular case. The list of illustrative bail conditions stipulated
in Sections 437 and 438 relate to the need to ensure a proper
investigation and fair trial10 or to prevent the accused from
committing an offence similar to the one he is suspected of11,
or in the interest of justice12. The phrase 'interest of justice'
has been interpreted in prior judgments of this Court where it
has been held that the discretion of the Court in imposing
24
conditions on bail must be exercised judiciously and to advance
a fair trial. [Kunal Kumar Tiwari v. The State of Bihar, (2018) 16
SCC 74; Dataram Singh v. State of Uttar Pradesh, (2013) 15
SCC 570; Sumit Singh v. State (NCT of Delhi), (2013) 15 SCC
570.] The bail conditions imposed by the Court must not only
have a nexus to the purpose that they seek to serve but must
also be proportional to the purpose of imposing them. The
courts while imposing bail conditions must balance the liberty of
the accused and the necessity of a fair trial. While doing so,
conditions that would result in the deprivation of rights and
liberties must be eschewed. In the decision in Parvez Noordin
Lokhandwalla v. State of Maharashtra, [(2020) 10 SCC 77], a
two-Judge Bench of this Court, of which one of us (Dr DY
Chandrachud) was a part, it was observed that bail conditions
must not be disproportionate to the purpose of imposing them:
"21. [...] The conditions which a court imposes for the grant of bail
- in this case temporary bail - have to balance the public interest in
the enforcement of criminal justice with the rights of the accused.
The human right to dignity and the protection of constitutional
safeguards should not become illusory by the imposition of
conditions which are disproportionate to the need to secure the
presence of the accused, the proper course of investigation and
eventually to ensure a fair trial. The conditions which are imposed
by the court must bear a proportional relationship to the purpose
of imposing conditions. The nature of the risk which is posed by the
grant of permission as sought in this case must be carefully
evaluated in each case."
32. Merely because the complaints filed against the
petitioner arise from posts that were made by him on a
social media platform, a blanket anticipatory order
preventing him from tweeting cannot be made. A blanket
order directing the petitioner to not express his opinion -
an opinion that he is rightfully entitled to hold as an
active participating citizen - would be disproportionate to
the purpose of imposing conditions on bail. The
imposition of such a condition would tantamount to a gag
order against the petitioner. Gag orders have a chilling
effect on the freedom of speech. According to the
petitioner, he is a journalist who is the co-founder of a
fact checking website and he uses Twitter as a medium of
communication to dispel false news and misinformation
25
in this age of morphed images, clickbait, and tailored
videos. Passing an order restricting him from posting on
social media would amount to an unjustified violation of
the freedom of speech and expression, and the freedom
to practice his profession.
(Emphasis supplied)
Further, in the case of BLOOMBERG TELEVISION PRODUCTION
SERVICES INDIA (P) LTD. V. ZEE ENTERTAINMENT
ENTERPRISES LTD5 the Apex Court holds as follows:
"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 the case of injunctions against
journalistic pieces, often to the detriment of the public.
While granting interim relief, the court must provide
detailed reasons and analyze how the three-fold test is
satisfied. A cursory reproduction of the submissions and
precedents before the court is not sufficient. The court
must explain how the test is satisfied and how the
precedents cited apply to the facts of the case.
6. In addition to this oft-repeated test, there are also
additional factors, which must weigh with courts while granting
an ex-parte ad interim injunction. Some of these factors were
elucidated by a three-judge bench of this Court in Morgan
5
2024 SCC OnLine SC 426
26
Stanley Mutual Fund v. Kartick Das, [(1994) 4 SCC 225] in the
following terms:
"36. As a principle, ex parte injunction could be granted only
under exceptional circumstances. The factors which should
weigh with the court in the grant of ex parte injunction are--
(a) whether irreparable or serious mischief will ensue to the
plaintiff;
(b) whether the refusal of ex parte injunction would involve
greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff
first had notice of the act complained so that the making of
improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had
acquiesced for sometime and in such circumstances it will
not grant ex parte injunction;
(e) the court would expect a party applying for 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. The standard to be followed may be
borrowed from the decision in Bonnard v. Perryman.
[[1891] 95 All ER 965] This standard, christened the
'Bonnard standard', laid down by the Court of Appeal
27
(England and Wales), has acquired the status of a common law
principle for the grant of interim injunctions in defamation suits.
[Holley v. Smyth, [1998] 1 All ER 853] The Court of Appeal in
Bonnard (supra) held as follows:
"...But it is obvious that the subject-matter of an action for
defamation is so special as to require exceptional caution in
exercising the jurisdiction to interfere by injunction before the trial
of an action to prevent an anticipated wrong. The right of free
speech is one which it is for the public interest that individuals
should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and, unless an
alleged libel is untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed in the
publication and repetition of an alleged libel. Until it is clear that an
alleged libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a
strong reason in cases of libel for dealing most cautiously and
warily with the granting of interim injunctions."
(emphasis supplied)
8. In Fraser v. Evans, [[1969] 1 Q.B. 349] the Court of
Appeal followed the Bonnard principle and held as follows:
"... in so far as the article will 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
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
28
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. In all other cases,
injunctions against the publication of material should be granted
only after a full-fledged trial is conducted or in exceptional
cases, after the respondent is given a chance to make their
submissions.
10. Increasingly, across various jurisdictions, the
concept of 'SLAPP Suits' has been recognized either by
statute or by courts. The term 'SLAPP' stands for
'Strategic Litigation against Public Participation' and 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.9 We must be
cognizant 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. 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 has "gone through the record
available as on date" and noticed certain precedents where an
ad-interim injunction was granted. Without even cursorily
dwelling on the merits of the plaint, the ad-interim injunction
granted by the trial Judge amounts to unreasoned censorship
which cannot be countenanced.
12. Undoubtedly, the grant of an interim injunction is an
exercise of discretionary power and the appellate court (in this
29
case, the High Court) will usually not interfere with the grant of
interim relief. However, in a line of precedent, this Court
has held that appellate courts must interfere with the
grant of interim relief if the discretion has been exercised
"arbitrarily, capriciously, perversely, or where the court
has ignored settled principles of law regulating the grant
or refusal of interlocutory injunctions."10 The grant of an
ex parte interim injunction by way of an unreasoned order,
definitely falls within the above formulation, necessitating
interference by the High Court. This being a case of an
injunction granted in defamation proceedings against a media
platform, the impact of the injunction on the constitutionally
protected right of free speech further warranted intervention."
(Emphasis supplied)
The High Court of Delhi in the case of AJAY KUMAR V. UNION OF
INDIA6, has held as follows:
"5. Merely because a publication pertains to a Court
proceeding this Court cannot come to a conclusion that the
publication either tends to impair the impartiality of the Court or
affects the ability of the Court to determine the true facts. One
has to carefully see the nature of the publication and find
out as to the content of the publication will cause
prejudice to the trial of a case or not. Prejudice by a
publication can be of two categories one which tends to
impair the courts impartiality and the other which
prejudices the court's ability to determine true facts. The
Petitioner has not revealed the nature of the Writ Petition which
has been filed by his mother and also the prayers sought for in
the said writ Petition. The Petitioner has also not filed anything
relating to the pending consumer case. The contents of the
newspaper does not, in the opinion of this Court, indicate any
kind of apprehension or danger or prejudice that can be caused
to the Petitioner or his mother.
6
2024 SCC OnLine Del 579
30
6. It is well settled that gag orders should be
passed only when it is necessary and to prevent
substantial risk to fairness of a trial. In the absence of
any material, this Court is unable to come to the
conclusion that the guidelines laid down by the Apex
Court in Sahara India Real Estate Corpn. Ltd. v. SEBI,
(2012) 10 SCC 603, has been, in any way, violated. This
Court is, therefore, inclined to dismiss the present Writ Petition
with cost of Rs. 10,000/- to be paid by the Petitioner to the
Armed Forces Battle Casualty Welfare Fund for wasting the
judicial time of this Court."
(Emphasis supplied)
What would unmistakably emerge from the afore-quoted judgments
of the Apex Court or that of the High Court of Delhi is that, gag
orders or order of restraint or injunction should be passed only
when it is necessary to prevent substantial risk, to fairness of a
trial. In the absence of any material, the Court also cannot pass
any restraint/gag order. The Chairman of the Bar Council of India
ostensibly cannot pass any such gag order which takes away the
fundamental right of any Advocate. The power of the Courts either
competent civil Court or the constitutional Court cannot be
permitted to be usurped by the Chairman of the Bar Council of
India, as is done in the case at hand.
31
13. The power of passing gag order, exercised by the 1st
respondent on all the Advocates on a particular topic, is de hors
such power that can be exercised under the general supervision and
control of the State Bar Council. Issuance of gag order is not a
power that can be inferred from Section 7(1)(g) of the Act.
Therefore, the very order directing restraint on an Advocate
speaking is, on the face of it, contrary to law, and is unsustainable.
The unsustainability of the order would lead to its obliteration.
14. The 1st respondent though served, has remained absent
throughout the hearing of this petition till the day it was
pronounced. Therefore, the petition is answered on the contentions
and averments in the petition.
15. For the aforesaid reasons, the following:
ORDER
(i) Writ petition is allowed.
32(ii) Proceedings initiated by the 1st respondent by order dated 08-04-2024 communicated through letter dated 12-04-2024 stand quashed.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ