Delhi District Court
Times Now Navbharat vs Shri Naresh Baliyan on 12 December, 2023
IN THE COURT OF SH. SUMIT DALAL,
ADDITIONAL DISTRICT JUDGE - 04,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
Miscellaneous Civil Appeal (DJ) No. 45/2023
In the matter of:
TIMES NOW NAVBHARAT
OWNED BY BENNETT, COLEMAN
& COMPANY LTD. .... Appellant
Through:
Sh. Jayant Mehta, Ld. Sr. Advocate with
Sh. Kunal Tandon, Sh. Ronnie S. Barara,
Ms. Varnalee Mishra, Ms. Ayushi, Ld.
Advocates.
Versus
NARESH BALIYAN ..... Respondent
Through:
Sh. N.C. Sharma, Sh. B.S. Jakhar, Sh.
Joginder Sehrawat, Sh. Rajender
Sehrawat, Sh. Pankaj Bhardwaj, Ld.
Advocates
APPEAL UNDER SECTION 104 CPC R/W ORDER XLIV
RULE 1 CPC
Date of Institution 16.09.2023
Date of conclusion of Arguments: 20.11.2023
Date of Decision 12.12.2023
Misc. Civil Appeal (DJ) No. 45/23
Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 1 of 58
INDEX
Sr. No. Particulars Page Nos.
1 BRIEF FACTS 3-8
2 GROUNDS FOR APPEAL 8-9
3 REPLY ON BEHALF OF THE 10
RESPONDENT
4 JUDGMENTS IN SUPPORT OF 10 - 12
ARGUMENTS
5 ARGUMENTS ON BEHALF OF THE 12 - 17
APPELLANT
6 ARGUMENTS ON BEHALF OF THE 17 - 22
RESPONDENT
7 QUESTION TO BE DETERMINED 22
8 ANALYSIS AND FINDINGS 22 - 54
a Bonnard Principle 24 - 25
b Is the Bonnard Principle applicable in 25 - 39
India
c Prima facie case 39 - 45
d Balance of convenience and Irreparable 45 - 47
loss
e Other judgments relied on behalf of the 47 - 49
respondent
f Legality of the Ld. Trial Court's order 49 - 54
8 ORDER 54 - 58
Misc. Civil Appeal (DJ) No. 45/23
Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 2 of 58
JUDGMENT
12.12.2023
1. In the present miscellaneous Civil Appeal filed under Section 104 of the Civil Procedure Code, 1908, read with Order XLIV Rule 1 CPC, the appellant, Times Now Navbharat (owned and operated by Bennett, Coleman & Company Limited), challenges the Order dated 06.09.2023 passed by the Learned Additional Senior Civil Judge-cum-In-charge Secretary-cum-Guardian Judge, Dwarka Courts. The contested order restrains the Appellant and its affiliates - including agents, associated TV and group channels, and all forms of associated media, both print and electronic, along with its executors, administrators, and representatives - from telecasting, broadcasting, or printing any news disseminated by Kapil Sangwan, also known as Nandu, of the 'Nandu Gang', directly or indirectly, until the final adjudication of the ongoing suit.
BRIEF FACTS
2. First about the parties according to their pleadings in the main suit. The Appellant here is the defendant and the respondent is the plaintiff in the main suit.
a. The Appellant, Bennett, Coleman & Company Limited is the broadcaster of the channel namely Times Now Navbharat. The channel as such is not an entity and hence, the present Appeal is being filed by Bennett, Coleman & Company Ltd. The Times Group is India's largest media conglomerate with its flagship company Bennett, Coleman & Company Limited Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 3 of 58 (BCCL) being the largest media company in India and South-Asia. The Appellant and its subsidiaries (collectively called 'the Times Group'), are present in every existing media platform - Newspapers, Magazines, Books, Television, Radio, Internet, Event Management, Outdoor Display, Music, Movies and more. The TV channels of the Times Group, including 'Times Now Navbharat' are leading channels in their respective genres and have a large audience base.
b. The Respondent is a two time sitting Member of Legislative Assembly (MLA) and has been elected in 2015 and again in 2020. The respondent has achieved a good reputation in the vicinity due to his hard work and good conduct.
3. As per the facts in the case, on 17.08.2023, the Appellant broadcasted an episode (hereinafter 'the episode') titled "Sarji ka Vidhayak, Gangster ka Sahayak" and "Operation Paap"
on the Channel Times Now Navbharat and on its social media handle on Youtube. In the episode, the Appellant sought to highlight the link/nexus between the respondent and Kapil Sangwan @ Nandu of 'Nandu Gang' who is a notorious gangster. The claim of the Appellant is that by the episode, the Appellant intended to bring to public knowledge the link between politicians and criminals.
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4. In the episode, the Appellant's anchor relied upon and played the following audio and video clips:
a. First is an audio clip of a telephone conversation which is alleged to be between the Respondent and one Kapil Sangwan, where the Respondent takes the name of Guru Charan Builders and Puran Store. The transcript of the same is as follows:
"Voice 1: हे लो हे लो, हाँ भाई ये लाउडस्पीकर बंद कर दो, आवाज़ साफ़ नहीं आती लाउडस्पीकर खोलने ते। Voice 2: बंद है ! बंद है ! बंद है ! बंद है ! किसपर करना है वो बता दो?
Voice 1: मेरी नज़र में तो एक तो क्या गुरु चरण बिल्डर और एक पर्ण ू स्टोर है , आप करवा दो तो मैं कर द ू फ़ोन।"
b. Second is a video clip in which a person with a muffled face is speaking directly to the camera. The said person is alleged to be Kapil Sangwan and in the video clip he narrates the nexus between him and the respondent and also elaborated the modus operandi of extortion. The transcript of the same is as follows:
"90% लोगो ने पैसे दिए है । एक करोड़ मांगे जाते थे, 30-40 में फैसला होता था। उसको मारने की धमकी दे ते थे, उसकी डिटे ल बताते थे सारी जो हमे पहले से ही नरे श बालियान प्रोवाइड करवा दे ता था। उसको उसकी डिटे ल बताते थे और उसको मारने की धमकी दे ते थे।"
c. Third is a video clip of a sting operation conducted by the reporter of the Appellant, wherein Sachin, son of Guru Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 5 of 58 Charan Builder, confirms the receipt of extortion demand. The transcript of the same is as follows:
"Sachin (Son of Guru Charan Builder): मेरे को लगता है की आज के दिन दिल्ली में कोई सरु क्षित नहीं है । अगर आप बात करे न सर, ये खाली बिल्डर को डराते नहीं आ रहे है , सिर्फ नेता को डराते नहीं आ रहे है । परू ी मार्फ़ त रोड मार्कि ट है यहाँ के उत्तम नगर की, आप compare करोगे तो करोल बाग से compare कर सकते हो इतनी अच्छी मार्कि ट है , उसपे बहुत सारे दक ु ानदारों को मैंने सन ु ा है डरा चक ु े है । बहुत लोगो से ये पैसे ले चक ु े है , तो पता नहीं सर मेरे को तो नहीं लगता की कोई सरु क्षित है ।
Reporter: पहले भी कभी फ़ोन आया है आप लोगो को? Sachin: कभी नहीं।
Reporter: ये पहली बार है ?
Sachin: मैं है रान हूँ सर, आया भी कैसे। ये समझ लो हम अगर कोई मार्कि ट में काम कर रहे है , अगर हम बड़े बिल्डर होते तो मेरे को समझ में आता की भाई कभी न कभी निशाने पर आ सकते है । हम शायद जो medium है ना उस से भी कम काम करते है । लोग 4-5 साइट चलाते है , हमारी 2 साइट चलती है । हमे यही नहीं समझ आ रहा की क्या दश्ु मनी निकाली है या क्या information गयी है , क्यों हमारा नाम लिया जा रहा है ।"
In the episode, the Appellant also invited five (5) penalist to debate on the aforementioned audio clips and video footage alleging that the respondent is hand in glove with Kapil Sangwan in his extortion racket.
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5. Feeling aggrieved by the episode, on 17.08.2023, the respondent filed C.S. No. 1033/2023 titled as "Naresh Balyan Vs. M/s Times Now Navbharat", a Civil Suit for mandatory and permanent injunction before the Ld. ASCJ-cum-JSCC-cum-Guardian Judge, Dwarka Courts, New Delhi, against the Appellant along with the application under Order XXXIX Rule 1 & 2 seeking ad-interim ex-parte injunction against the Appellant. The respondent claimed in the suit that the contents of the episode are false and no prior verification has been sought by the Appellant from the Respondent herein before holding the debate and airing the episode.
6. On 17.08.2023 at 5:18 p.m. Ld. ASCJ cum JSCC cum Guardian Judge, Dwarka Court, New Deihl vide its order dated 17.08.2023 issued summons to the Appellant and directed the Appellant M/S Times Now Navbharat/Times Group Media Channel not to broadcast/telecast/print the news/statement/ opinion under the heading of "Operation Paap" against the Respondent till the next date of hearing.
7. On 21.08.2023, the Orders dated 17.08.2023 was challenged before the Hon'ble High Court of Delhi, invoking the Jurisdiction under Article 227 of the Constitution of India, and accordingly, CM(M) No. 1356 of 2023 was filed. The matter was heard in detail on 22.08.2023 and the CM(M) was dismissed as not maintainable. It was directed that upon the Appellant filing the reply to the Application under Order XXXIX Rule 1 and 2 by Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 7 of 58 28.08.2023 in the main suit, the matter be heard and disposed within 1 week by Ld. ASCJ-cum-JSCC-cum-Guardian Judge, Dwarka Courts, New Delhi.
8. After hearing the arguments in detail on 29.09.2023, the Ld. ASCJ-cum-JSCC-cum-Guardian Judge, Dwarka Courts, New Delhi, passed an order on 06.09.2023 allowing the Application under Order XXXIX Rule 1 & 2 CPC. The present appeal is against this order dated 06.09.2023 GROUNDS FOR APPEAL
9. In order to sustain the challenge qua the impugned order, the Appellant has inter-alia taken the following grounds:
a. The Impugned Order passed is contrary to the settled principles of law, and liable to be set aside. b. The Impugned Order lacks cogent reasoning and lacks due and proper application of the facts and circumstances. c. The Impugned Order is bereft of any reasons, and in fact, the only reasoning that is provided is contained in Para 8 of the Impugned Order, which is contrary to settled principles of law, briefly noticed by the Ld. ASCJ-cum-JSCC-cum-Guardian Judge in Para 6 of the impugned Order.
d. The Ld. ASCJ-cum-JSCC-cum-Guardian Judge without considering the legal position, the facts involved, defense taken by the Appellants of truth, fair reporting, and public Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 8 of 58 interest, and passed a gag order, which is not permissible in law. The Ld. ASCJ-cum-JSCC-cum-Guardian Judge proceeds on the assumption that the case for defamation is made out.
e. There is no discussion whatsoever that the case of defamation as a prima facie case is made out. The Prima facie case has been made out by the Ld. ASCJ-cum-JSCC-cum-Guardian Judge as the Appellant had failed to prove truth, fair reporting and public interest as a defense at the moment, and since the defense of the Appellant is yet to pass the evidence stage. f. The Appellant stands by its broadcast on the ground of truth, fair comment, and public interest in exercise of its fundamental right of speech and expression as envisaged under Art. 19(l)(a) of the Constitution of India. The episode and its content are based upon true facts in relation to a matter of serious concern deserving to be known to the public at large for their security and also for debate on the conduct of public persons/politicians. Given this defence, it is trite that there cannot be any injunction on the publication/broadcast.
g. The Ld. ASCJ-cum-JSCC-cum-Guardian Judge failed to consider that the entire plaint is bereft of particulars and further fails to specifically deny substantial aspects of the telecast. There is no discussion in respect of the argument that there is no specific denial to the news report by the Respondent in the plaint.
Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 9 of 58 REPLY ON BEHALF OF THE RESPONDENT/PLAINTIFF
10. The respondent/plaintiff, instead of filing a written reply to the appeal, opted to present their arguments directly during the hearing. The Ld. counsel for the respondent refuted all the submissions on the fact as well as the application of the law in the case at hand. The main arguments presented on behalf of the respondent/plaintiff, which will be detailed in the following paragraphs, center around the assertion that the impugned order does not lack any perversity that would necessitate intervention by this Court. Additionally, it is argued on behalf of the respondent that the appeal does not contain any claim contesting the existence of a prima facie case in favor of the respondent, nor does it challenge the balance of convenience being in the respondent's favor. Furthermore, it is pointed out that the appeal does not argue against the likelihood of irreparable loss being caused to the respondent.
JUDGMENTS IN SUPPORT OF THE ARGUMENTS/ SUBMISSIONS MADE BY BOTH THE PARTIES
11. In the legal proceedings before this Court, while both parties submitted multiple judgments for consideration, only a select few were actively referenced and discussed during their arguments by them which are as follows:
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12. Judgments relied by Appellant/defendant in their arguments:
a. Sardar Charanjit Singh Vs. Arun Purie & Ors., 1983 (4) DRJ 86 b. Khushwant Singh & Anr. Vs. Maneka Gandhi, 2001 SCC Online Del 1030 c. Tata Sons Vs. Green Peace International, 2011 SCC Online Del 4 d. Shashi Tharoor Vs. Arnab Goswami 2017 SCC Online Del 12049 e. Kailash Gahlot Vs. Vijender Gupta and Ors., 2022 SCC Online Del 679 f. Fiitjee Limited Vs. Vidya Mandir Classes Ltd., 2022 SCC Online Del 484 g. Sushil Ansal Vs. Endemol India Private Limited & Ors., 2023 SCC Online Del 121 h. Manohar Lal Sharma v. Union of India, 2021 SCC Online SC 985
13. Judgments relied by the Respondent/plaintiff in their argument:
a. Patanjali Ayurveda Ltd. & Anr. Vs. Sobhagya Media Pvt. Ltd. (APN Live) & Ors. CS(OS) 135/2020 dated 01.06.2020 Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 11 of 58 b. Swantanter Kumar Vs. Indian Express Ltd. & Ors, 2014 Lawsuit(Del) 102 c. Swami Ramdev Vs. Juggernaut Books Pvt. Ltd. & Ors, 2018 SCC Online Del 11549 d. Serum Institute of India Pvt. Ltd. & Anr. Vs. Yohan Tengra & Ors., Suit (L) No. 332533 of 2022 dated 05.06.2023 e. Hari Shankar v. Kailash Narayan, Madhya Pradesh High Court, Civil Revn. No. 617 of 1979 dated 02.04.1981
14. In order to adjudicate upon this appeal, this Court heard Sh. Jayant Mehta, Ld. Senior Counsel for the Appellant and Sh. N.C. Sharma, Ld. Counsel for the respondent on 16.09.2023, 27.09.2023, 09.10.2023, 16.10.2023, 25.10.2023, 08.11.2023 and 20.11.2023.
ARGUMENTS ON BEHALF OF THE APPELLANT
15. Sh. Jayant Mehta, Ld. Senior Counsel appearing for the Appellant has made the following submissions/arguments:
a. The Ld. Senior Counsel representing the Appellant begins by stating that the Appellant affirms the authenticity of the audio and video clips recordings broadcasted in the subject episode on 17.08.2023. The Ld. Senior Counsel asserts that the Appellant fully supports the truthfulness of this Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 12 of 58 recording. Furthermore, he emphasizes that the discussion facilitated in the episode was focused on verified and accurate facts.
b. The Ld. Senior Counsel asserts that the episode aired by the appellant on 17.08.2023, was completely fair and honest, and was broadcasted in the interest of the public. He emphasizes that the appellant stands firmly by the episode's content and the authenticity of the audio/video recordings featured in it. Furthermore, he declares the appellant's readiness to shoulder the responsibility of proving the veracity of the audio and video recordings at trial. c. The Learned Senior Counsel contends that if the Appellant has asserted defenses such as truth, fair comment, or public interest, a Civil Court cannot issue an injunction to prevent the broadcasting of the news or episode in question. In this situation, the Respondent's only recourse would be to pursue damages. To support this argument, the Learned Senior Counsel cites the decision of the Honorable Delhi Court in the case of Sardar Charanjit Singh (Supra). d. The Learned Senior Counsel also makes a plea based on the Bonnard rule, emphasizing that injunctions are extremely rare and typically only granted in exceptional cases. These cases arise when the defendant hasn't invoked the Bonnard Defense -- which includes fair comment, truth, or public interest -- or when the court determines that the defamatory content is overwhelmingly false and maliciously so, justifying a restriction on its publication. The ld. senior Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 13 of 58 counsel argues that none of these conditions are applicable in the current case. He further adds that the respondent/plaintiff was required to meet a certain standard to be successful in obtaining an injunction. The standard is that despite the appellant/defendant claiming justification, fair comment, or truth as their defense, they are bound to fail. It is incumbent upon the respondent/plaintiff to satisfy this standard to achieve a favorable outcome in securing an injunction. For this argument, he relied upon the judgments in Sardar Charanjit Singh (supra), Khushwant Singh (supra), Tata Sons (supra), Shashi Tharoor (supra), Kailash Gahlot (supra), Fiitjee Limited (supra).
e. The Learned Senior Counsel asserts that the order in question, dated 06.09.2023, imposes an unqualified and absolute injunction, effectively amounting to a gag order, which is not permissible under the law. He argues that issuing such a gag order infringes upon Article 19(1)(a) of the Indian Constitution, thereby violating the Appellant's fundamental right to broadcast news. In support of this position, he references Hon'ble Delhi High Court's judgments in the cases of Tata Sons (supra) and Dr. Shashi Tharoor (supra).
f. The Learned Senior Counsel contends that the balance of convenience does not support the issuance of the injunction in question. He emphasizes that the challenged order lacks sufficient reasoning for the imposition of such a comprehensive injunction. To reinforce his argument, he Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 14 of 58 refers to the judgment by the Division Bench of the Honorable Delhi High Court in the case of Khushwant Singh (supra).
g. The Ld. Senior Counsel argues that the plaint does not contain any specific denial from the plaintiff/respondent regarding his conversation with Kapil Sangwan, whose voice was allegedly played. Additionally, it lacks any categorical refutation by the plaintiff/respondent that the voice heard in the recording broadcasted on the news channel is not his. Overall, the plaint is characterized by a lack of precise averments and is filled with ambiguous claims. h. The Ld. Senior Counsel for the Appellant argued that respondent/plaintiff has admitted to engaging in conversations with Kapil Sangwan, an outlaw, on numerous occasions, as stated in his own documents and the complaint made to ACP. Despite these admissions, there is a notable absence of any denial or clarification in the plaint regarding the nature of these conversations. The respondent/plaintiff neither disputes the occurrence of these conversations nor challenges the authenticity of their voice or Kapil Sangwan's voice in any of the communications.
i. The Ld. Senior Counsel argued that proper steps were taken by the Appellant to demonstrate due diligence in verifying the audio recordings before publication/broadcasting, thereby supporting the correctness of the broadcasted content and aligning with journalistic standards and legal precedents. A separate affidavit has been filed on behalf of the appellant, Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 15 of 58 before this Court, regarding the steps taken by the appellant in confirming the authenticity of the audio recording of the telephonic conversation between the respondent/plaintiff with Kapil Sangwan.
j. The Learned Senior Counsel emphasized the significance of 'public interest' concerning the broadcast of the episode involving the Respondent/plaintiff, an elected representative and Kapil Sangwan, an outlaw. He argued that it is essential for the public to be informed about such matters. The Ld. Senior Counsel posited that it is in the public's interest to know, discuss, and debate the actions of their elected representatives. The public has the right to scrutinize and, if necessary, condemn the conduct of the elected representative in having communications with an outlaw. This process of public discourse is fundamental in a democratic society, where the actions of public figures are subject to open discussion and evaluation by the citizenry. k. The Learned Senior Counsel referenced the judgment in Shashi Tharoor (supra) case to argue that even in situations where a plaintiff in an injunction suit claims that their ongoing criminal trial or investigation could be negatively influenced by a publication, the court typically does not restrict such publication. This applies even if the plaintiff contends that the publication, whether planned or already executed, undermines their presumption of innocence and hampers their right to a fair trial by prematurely suggesting guilt. The Ld. Senior Counsel emphasized that this approach Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 16 of 58 demonstrates the strong protection afforded to freedom of expression under the constitution, as consistently supported by judicial decisions. He pointed out that, in the current case, this fundamental principle of freedom of expression seems to have been disregarded by the trial court.
l. The Learned Counsel contended that the threshold for granting an injunction in cases of defamation involving the press is higher compared to the standard prima facie case requirements. Reliance is placed on the judgment in Tata Sons (Supra).
m. The Learned Counsel expressed strong objections to the legality and reasoning of the Ld. Trial Court's order, arguing that it neglected the necessary legal tests and instead applied inappropriate criteria. The counsel pointed out that the Ld. Trial Court did not provide any observations, reasoning, or conclusions to demonstrate that the content in question was clearly false, malicious, untrue, or defamatory, nor did it establish that the defendant was bound to fail in their defense, which are essential considerations for issuing an injunction.
ARGUMENTS ON BEHALF OF THE RESPONDENT
16. Sh. N.C. Sharma, Ld. Counsel for the respondent made the following arguments/submissions:
Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 17 of 58 a. The learned counsel representing the respondent contended that there are no allegations in the appeal regarding irregularity or illegality in the contested order. The appeal lacks any claim indicating the absence of a prima facie case, or that the balance of convenience is not in the respondent's favor, or that there would be no irreparable harm if the injunction were denied.
b. The respondent's ld. counsel further argued that the appellant did not authenticate the audio and video clips featured in the episode. Despite involvement of a public figure, the material was broadcasted without verifying facts, consulting the appellant, or gaining his confidence. The Ld. Counsel emphasized that to date, neither any agencies nor the Court nor investigative bodies have authenticated the broadcasted material. The Ld. Counsel also drew the court's attention to a notice issued to the appellant by the Special SWR/Spl Cell, Jankapuri, under Section 91 CrPC. This notice demanded the original clip of the telecasted episode, the sources of the audio and video clips, and a certification confirming that the voice in the clips was indeed Kapil Sangwan's. The respondent's Ld. Counsel claimed that the appellant had only provided a CD containing the full episode, with no information about the source or confirmation that the voice belonged to Kapil Sangwan.
c. The ld. Counsel for the respondent contended that the audio and video clips of Kapil Sangwan featured in the episode were not obtained through a sting operation by the appellant. Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 18 of 58 According to the appellant's own admission, these footages were allegedly received directly from Kapil Sangwan. Given this context, the counsel argued that the appellant bears a greater responsibility to verify the authenticity of these clips and footage prior to broadcasting them in the episode. d. The Ld. Counsel for the respondent asserted that their client has no connection with Kapil Sangwan. Rather, the respondent is a victim of Kapil Sangwan, having received death threats and extortion demands from him. To substantiate this claim, the counsel highlighted that the respondent has filed police complaints against Kapil Sangwan, with the relevant complaints dated 19.12.2022 and 03.07.2023.
e. On the basis of aforementioned arguments, the Ld. Counsel for the respondent claimed that broadcasted episode was clearly defamatory and therefore there is a prima facie case in favour of the respondent.
f. The Ld. counsel for the respondent argued that the irreparable loss of reputation will be caused to the respondent if the clips/footages in question is allowed to be broadcasted. He relied on the judgment in Hari Shankar (supra) and submitted that reputation can not be compensated by damages in terms of money.
g. The respondent's Ld. Counsel addressed the aspect of 'balance of convenience,' arguing that denying the Appellant's appeal and maintaining the current injunction would not result in any prejudice to the Appellant. This Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 19 of 58 position is grounded on the fact that the clips and footage in question have already been aired by the Appellant on a 17.08.2023. Thus, since the broadcasting has already occurred, the continuation of the injunction would not impose additional harm on the Appellant. In contrast, the respondent might continue to suffer harm if the injunction were lifted. As a result, the counsel contended that the 'balance of convenience' leans towards favoring the respondent.
h. In response to the Appellant's argument that there are no specific denials on behalf of the respondent in his plaint that the voice in the clips/footage was not his, the respondent's counsel explained the reason for the same. The Ld. counsel argued that it wasn't feasible to refute each dialogue individually, as the publication started around noon and the suit had to be filed on the same day before the Courts are closed. The respondent, at that time, did not possess the comprehensive material that the Appellant had; they only had access to information provided by family members and friends. Based on this limited information, the respondent filed the plaint. The Ld. counsel highlighted the challenges in preparing detailed pleadings under tight time constraints and with limited access to the full scope of the evidence in question. He further submitted that the claim in the plaint that the Appellant has broadcasted a false news based on false contents is a sufficient averment that the voice in the audio clip is not of the respondent.
Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 20 of 58 i. The learned counsel for the respondent countered the argument presented by the learned senior counsel for the appellant, who had claimed that broadcasting the audio and video clips was in the public interest, thereby arguing against any injunction on the broadcast. The respondent's counsel argued that the broadcasting of the audio/video clips in question does not serve the public interest. They emphasized that the audio/video is not part of any trial or any public record. The counsel further stated that even if the content of the communication is considered true, it remains a private conversation between two individuals, unrelated to state politics or the respondent's role as a Member of the Legislative Assembly (MLA). The act in question, they argued, was not carried out in the capacity of an MLA and thus falls outside the scope of public interest. The respondent's counsel emphasized the distinction between 'interest of the public' and 'public interest,' arguing that not all information that the public finds interesting necessarily serves the public interest. He contended that even if the appellant's claim about the authenticity of the clips or footage is accepted, this information, while potentially interesting to the public, does not meet the criteria of being in the public interest. To support this argument, he relied on the judgment in Swami Ramdev (Supra).
j. In his concluding remarks, the counsel for the respondent asserted that the Bonnard Principle is not applicable within the jurisdiction of this Court. Consequently, the appellant's Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 21 of 58 argument that invoking the Bonnard Principle should prevent any injunction against publication or broadcast is not valid. To bolster this claim, the counsel referred to the judgment in the Swami Ramdev (supra), where the Bonnard Principle was extensively examined, yet the Honorable Delhi High Court still issued an injunction. Further, the counsel cited additional judgments in Patanjali (supra), Swatanter Kumar (supra), Swami Ramdev (supra) and Serum Institute of India (supra) noting their similarity to the current case and how injunctions were granted in those instances by the Honorable Courts.
QUESTION TO BE DETERMINED
17. After considering the submissions made by the Ld. Senior Counsel for the Appellant and the Ld. Counsel for the Respondent and pursuing the file of the Ld. Trial Court, this Court is of the opinion that the main question before this Court is "whether, in the facts and circumstances of the present case, the trial court was correct in its application of legal principles to be followed in deciding the application seeking interim injunction against publication/broadcast in a suit for defamation?"
ANALYSIS AND FINDINGS
18. This Court has gone through the appeal, the plaint, injunction application, the written statement as well as the documents filed alongwith. This Court has also given careful Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 22 of 58 consideration to the arguments/submissions advanced by the Ld. Counsels for the parties at bar and has also examined in detail the judgments relied upon by both the parties. This Court shall now discuss/analyze the respondent/plaintiff entitlement to the interim injunction at this stage.
19. At the outset, this Court will examine the legal principles that guide the issuance of an interim injunction in defamation cases.
20. In the case of Gujarat Bottling Co. Ltd. v. Coca Cola Co. 1995 5 SCC 545, the Hon'ble Supreme Court, while discussing the factors to be considered by the Courts in exercise of the discretion under Order 39 Rule 1 & 2 CPC, has held that:
"The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests:
(i) Whether the plaintiff has a prima facie case;
(ii) Whether the balance of convenience is in favour of the plaintiff;
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory is disallowed."
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21. In the context of adjudicating an interim injunction in a defamation lawsuit, the Court must consider 'Bonnard Principle' beyond the aforementioned traditional triad of principles typically employed in such cases. Once the Bonnard Principle is pressed into operation, the Court can not pass an injunction except in exceptional cases.
Bonnard Principle
22. The Bonnard Principle, derived from the case of Bonnard v. Perryman [1891] 2 Ch 269, is a legal principle related to the granting of interim injunctions in cases of defamation. It is a guiding principle related to the granting of interim injunctions in cases of defamation. According to this principle, an interim injunction should not be awarded unless the defense of truth/justification by the defendant is certain to fail at the trial level. In other words, the court should not restrain the publication of alleged defamatory content before the trial, unless it is clear that the content is untrue and no valid defense can be presented. The Bonnard Principle sets a high threshold for granting interim injunctions in defamation cases, requiring a clear case of an untrue libel before restraining the publication. Where the defendant in the civil suit of defamation pleads justification, no interim injunction can be granted and in the event that the said defendant fails in his defence, damages would be an adequate remedy. The principle emphasizes the importance of protecting the right to free speech.
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23. Thus Bonnard principle stipulates that an interim injunction preventing publication or broadcast cannot be issued in a defamation lawsuit if the defendant asserts defenses of truth, fair comment, and public interest. This principle only ceases to apply if it is evident that the defendant's defense is certain to fail, marking an exception to the Bonnard rule. In such a scenario, the Bonnard principle would not be applicable.
Is the Bonnard Principle applicable in India?
24. The relevance of the Bonnard principle's applicability in India is key to adjudicate the main question in the appeal. This arises from the argument presented by the Ld. Counsel for the respondent, who asserts that the Bonnard principle is no longer valid in India. To substantiate this claim, the Ld. Counsel for the respondent cites the case of Swami Ramdev (Supra), Serum Institute of India (Supra) and Hari Shankar (Supra) as a supporting reference.
25. The Ld. Counsel for the respondent emphasized that despite the Hon'ble Delhi High Court's extensive review of various judgments, including those from foreign jurisdictions, and its consideration of the Bonnard Principle, the court ultimately issued an injunction in Swami Ramdev (Supra). The argument of the Ld. Counsel for the respondent is that the decision in Swami Ramdev (Supra) suggests that the Hon'ble Delhi High Court did not agree Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 25 of 58 with the arguments supporting the Bonnard Principle, leading to the conclusion that the court has chosen not to accept or apply this principle in its ruling and thus Bonnard Principle is not applicable within the jurisdiction of the Hon'ble Delhi High Court. Further, the counsel cited additional judgments in Serum Institute of India (supra) and Hari Shankar (supra) claiming their similarity to the current case and how injunctions were granted in those instances by the Honourable Courts despite the Bonnard Principle.
26. Whereas, on the other side, judgments of the Honourable Delhi Court in Khushwant Singh (Supra), Tata Sons (Supra), Shashi Tharoor (Supra), Kailash Gahlot (Supra), Fiitjeet Limited (Supra) and Sushil Ansal (Supra) have been relied on by the Appellant where the Hon'ble Delhi High Court has accepted and applied the Bonnard Principle. This Court, after reviewing the mentioned judgments, observed that the Bonnard Principle was employed by the Honorable Delhi High Court in these cases, resulting in the decision not to grant any injunctions against publication or broadcast.
27. Each of the aforementioned decisions which are relied upon on behalf of the Appellant, applied the Bonnard principle without exception or dispute. To avoid repetition, instead of replicating relevant sections from all these judgments, only a portion of the judgment from the Tata Sons (Supra) case is provided below:
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"28. The English common law precedent on awarding interim injunctions in cases of defamation is set out by the case of Bonnard (supra). In Bonnard it was decided that an interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level. The Court's observations, widely applied in subsequent judgments are as follows:
"...[T]he 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... In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 27 of 58 wholly unfounded; nor can we tell what may be the damages recoverable."
Again, in Fraser v. Evans, [1969] 1 QB 349 Lord Denning MR stated the law as follows:
"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 . Perryman. 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. ... There is no wrong done if it is true, or if [the alleged libel] is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication..."
Subsequently, in Crest Homes Ltd. v. Ascott, [1980] FSR 396 the Trial Judge granted an interlocutory injunction against the defendant who said that he would justify his assertions. Allowing the appeal and discharging the injunction, the Court (CA) held:
"(1) There was no reason to depart from the general rule that an interlocutory injunction will not be granted against a defendant in a libel action if he intends to plead justification unless the plaintiff can prove that the statement is untrue; (2) The plaintiff had not shown that the defendant‟s statement was Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 28 of 58 untrue...the line of authority is long and weighty that interlocutory injunctions in these cases will not be granted unless the plaintiff shows that the defence of justification will not succeed...
In Herbage v. Pressdram Ltd., [1984] 1 WLR 1160 Griffiths LJ restated the effect of the rule and then said (at p 1162H):
"These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages."
He refused to water the principles down. After summarizing an argument by counsel, which suggested that the combined effect of the Rehabilitation of Offenders Act 1974 and the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] AC 396 justified a radical departure from the rule, he went on to say (at p 1163B):
"If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 29 of 58 repetition of the alleged libel until trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech."
In Holley v. Smyth, [1998] QB 726, where the potency of the rule (in Bonnard) was reaffirmed the Court reiterated the principle as follows:
"I accept that the court may be left with a residual discretion to decline to apply the rule in Bonnard v . Perryman in exceptional circumstances. One exception, recognised in that decision itself, is the case where the court is satisfied that the defamatory statement is clearly untrue. In my judgment, however, that is a discretion which must be exercised in accordance with established principles."
The Bonnard rule (against interim injunction restraining publication) was affirmed in Martha Greene v. Associated Newspapers Ltd., [2004] EWCA Civ 1462, in the following terms, after quoting and relying on Halsbury‟s Laws of England, 4th Ed, vol 28, para 167:
"The Law of Prior Restraint in Defamation Actions: the Rationale of the Rule This survey of the caselaw shows that in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 30 of 58 court attaches to freedom of speech. It is partly because a judge must not usurp the constitutional function of the jury unless he is satisfied that there is no case to go to a jury. The rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and cross examination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true..."
....Because of the court's reluctance to fetter free speech and because the questions that arise during the proceedings, such as whether the meaning is defamatory, whether justification or fair comment are applicable and as to malice, are generally for the jury, interlocutory injunctions are granted less readily in defamation proceedings than in other matters and according to different principles..."
"29. From the above reasoning it follows that the Court will invariably not grant an interim injunction to restrain the publication of defamatory material as it would be unreasonable to fetter the freedom of speech before the full trial takes place, where each of the parties can argue in detail with the help of additional evidence. Similarly in this matter, it is incumbent upon this Court to decide whether it would be reasonable to fetter the reasonable criticism, comment, and parody directed at the plaintiff, which to a large extent is protected by the Constitutional guarantee to free speech, to all Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 31 of 58 the citizens of India. This point of view was also strengthened by a recent challenge to the old common law rule of Bonnard in the case of Greene v. Associated Newspapers Limited, 2005 (1) All.ER. 30, where it was decided that if it is a known fact that the true validity of the defamation claims will only be tested at trial level then it would only be appropriate for the Court not to award an interim injunction to the plaintiffs as it would otherwise put an unreasonable burden on the concept of free speech. After an elaborate survey of the law on the issue, it was held that:
"This survey of the caselaw shows that in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the court attaches to freedom of speech. It is partly because a judge must not usurp the constitutional function of the jury unless he is satisfied that there is no case to go to a jury. The rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and crossexamination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true. And if it is or might be true the court has no business to stop them saying it. This is another way of putting the point made by Sir John Donaldson MR in Khashoggi, to the effect that a court cannot know whether the plaintiff has a right to his/her reputation until the trial process has shown where the Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 32 of 58 truth lies. And if the defence fails, the defendants will have to pay damages (which in an appropriate case may includes aggravated and/or exemplary damages as well)"
......
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 Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 33 of 58 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."
28. This Court also thoroughly examined the rulings in the cases of Swami Ramdev (Supra), Serum Institute of India (Supra) and Hari Shankar (Supra) which were relied upon by the Ld. Counsel for the respondent. Upon review, it is concluded that these judgments are not applicable and can be differentiated from the facts of the current case. The subsequent paragraphs will explain why, in the cases of Swami Ramdev (Supra), Serum Institute of India (Supra) and Hari Shankar (Supra), despite the invocation of the Bonnard Principle, it was not applied, and an injunction was granted instead.
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29. Starting with Swami Ramdev (Supra). The respondent in this case made certain allegations against Swami Ramdev in his book. When Swami Ramdev sought injunction against the publication of the Book, the respondent pleaded the defence of truth and fair comment. But, this Court is of the view that the defence of the respondent was bound to fail in that case and thus the case comes under the exception of Bonnard Principle and due to this reason the injunction was granted. The defence of the respondent was bound to fail in that case due to the following reasons:
S. Allegation in the book Why the defence of truth Relevant No. was bound to fail para of Swami Ramdev (Supra)
1. The respondent The allegation was totally 141 alleged that there was unfounded in view of the some foul play in death certificate of Rajiv relation to the death of Dixit disclosing that he had Rajiv Dixit and that died a natural death caused the Appellant was by an acute myocardial unwilling to permit the infraction (heart attack).
conducting of the The death certificate was postmortem in a bid to never challenged nor was cover up the foul play. there any pending investigation in relation Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 35 of 58 thereto. In view of the death certificate and no pending investigation, there is no way for the publisher/respondent to prove that the allegations were true.
2. The spiritual mentor of A closure report was filed in 150, 172 the Appellant, Swami relation to the missing of and 178 Shankar Dev, Swami Shankar Dev and the disappeared and it was same was accepted by the alleged in the book Special Judicial Magistrate that the Appellant was (CBI)/ACJM(I) Dehradun. somehow responsible Therefore, the defence of for the disappearance truth of the respondent was of Swami Shankar bound to fail.
Dev.
3. It was alleged in the The Investigating Officer 141, 150, book that the filed an 'untraced report' in 172 and Appellant had a role in this matter, therefore, it was 178 the murder of Swami clear that there was no way Yoganand. for the respondents to prove that the allegations were true and accordingly no defence would succeed in relation to the same Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 36 of 58 Thus, it is evident from the aforementioned discussion that there were sufficient facts to conclude in Swami Ramdev (supra) that the 'defence is bound to fail'. Since the defence in that case was destined to fail, it falls under the exceptions to the Bonnard Principles. As a result, the Bonnard Principles do not apply in that scenario, making Swami Ramdev's case a suitable case for the issuance of an injunction.
30. Now coming to Serum Institute of India (supra). The case in brief involves the defendant posting a content/video on YouTube and other social media platforms, alleging that the Covishield vaccine, produced by the plaintiffs, led to the deaths of millions. The plaintiffs were accused of being murderers and criminals, with calls for their arrest and imprisonment. The plaintiffs filed a suit against the defendant, accompanied by an application for an interim injunction. The Honorable Bombay Court ruled in favor of the plaintiffs, granting the interim injunction against the defendant. The defendant's defense of truth and fair comment was deemed bound to fail, as they failed to bring any material to justify the allegations against the plaintiff. In contrast, an affidavit from the Additional Commissioner (Immunization) of the Ministry of Health and Family Welfare presented in another case before the Hon'ble Supreme Court supported the plaintiff's position. This affidavit stated that the vaccines saved millions, with adverse effects reported in only Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 37 of 58 0.00013% of cases. The defendant also cited a July 2021 warning from the World Health Organization (WHO) about Guillain-Barre Syndrome (GBS) potentially caused by Covishield. However, The Hon'ble Bombay HC after considering the said warnings reached a conclusion that the same do not amount to a finding that the Covieshield vaccines of the plaintiffs has killed millions. Therefore, this Court is of the view that the defendant's defense in Serum Institute of India (supra) was bound to fail and due to this reason the injunction was granted in that case. Thus, the Bonnard principle was inapplicable in that case. Paragraphs 55, 56, and 58 of the judgment in Serum Institute of India (supra) are particularly pertinent to the observation made by this Court.
31. In the case of Hari Shankar (supra), there was no discussion or consideration of the Bonnard principle, rendering it irrelevant for determining the principle's applicability. The judgment primarily focused on the idea that reputation damage cannot be adequately compensated with monetary damages. However, this view becomes less tenable when considering the Bonnard Principle, which was not invoked in Hari Shankar's case. Additionally, the judgment in Hari Shankar comes from the Honorable Madhya Pradesh High Court. Given that there are explicit rulings from the Honorable Delhi High Court, which have a differing stance on the issue of interim injunction in defamation cases, this Court in the jurisdiction of Delhi is obligated to adhere to the precedents set by the Hon'ble Delhi High Court.
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32. In light of the analysis in the preceding paragraphs, it's clear that the Honorable Delhi Court acknowledges and employs the Bonnard Principle in relevant cases. Consequently, the contention by the respondent that the Bonnard Principle is outdated and no longer relevant is not tenable.
Prima Facie Case
33. The responsibility to establish a 'Prima facie case' rests with the Plaintiff. The judgment in Tata Sons (supra) specifies that the plaintiff must meet a higher threshold in defamation cases, especially when seeking an injunction against the press. As discussed earlier, when the defendant invokes and emphasizes Bonnard's principle, the plaintiff's burden to demonstrate a prima facie case is only met if they can convincingly show that the defendant's defense of truth, fair comment, and public interest is destined to fail. It's crucial to understand that the proof required is of 'bound to fail', not merely 'may fail'. This is the reason the burden on the plaintiff is heavier in case the Bonnard principle is pressed.
34. In beginning its examination, the Court scrutinized the Written Statement submitted by the Appellant in the main suit before the Ld. trial court. Notably, in paragraph 4 of the Written Statement, the Appellant distinctly asserted the defenses of truth, fair comment, and public interest. Consequently, it is clear that the Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 39 of 58 Appellant has actively invoked and asserted the Bonnard principle in their Written Statement.
35. Next, let's delve into the arguments presented by both parties to determine whether the appellant's defense of truth, fair comment, and public interest is inevitably 'bound to fail', or if it is simply a case of 'may fail'.
36. The appellant's Ld. Senior Counsel has persuasively argued that the original plaint in the main suit before the ld. trial court lacks specific denial or refutation regarding the conversations of the respondent with Kapil Sangwan, whose voice was allegedly featured in the broadcast. This absence of precise averments or categorical refutations in the plaint regarding the authenticity of the voice recordings is significant. The respondents own documents and complaints to the ACP acknowledge engagement in conversations with Kapil Sangwan, yet the plaint does not explicitly deny or clarify the nature of these conversations. This omission undermines the respondent's argument about the lack of authentication of the broadcasted material.
37. Furthermore, the appellant has demonstrated due diligence in verifying the information before publication, as evidenced by a separate affidavit filed on their behalf before this Court. This effort to confirm the authenticity of the audio recording Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 40 of 58 of the telephonic conversation between the respondent and Kapil Sangwan aligns with journalistic standards and legal precedents.
38. In the present case, the affidavit submitted by the Appellant and the arguments put forth by their learned senior counsel reveal that upon receiving the audio clip of the telephonic conversation between the respondent and Kapil Sangwan, the Appellant diligently verified its accuracy. This verification process included contacting Kapil Sangwan directly, who confirmed the authenticity of the audio clip of the telephonic conversation between him and the respondent. The Appellant's efforts to ensure the veracity of the information did not end there; they also conducted a sting operation on the son of Gurucharan Builders, who is one of the individuals mentioned in the telephonic conversation. During this operation, the son of the builder confirmed receiving extortion calls.
39. The respondent has raised concerns about the authenticity of the audio clips, particularly highlighting that the Appellant did not provide confirmation to the Special SWR/Spl Cell, Janakpuri when the notice was sent to Appellant under Section 91 CrPC and the confirmation was sought regarding the authenticity of the audio clips of the telephonic conversation between the respondent and Kapil Sangwan. However, this court recognizes that the Appellant has submitted a detailed affidavit affirming the authentication process undertaken prior to Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 41 of 58 broadcasting the audio clips. This submission is deemed as adequate compliance with the requirement to authenticate the audio/clip before broadcasting. Therefore, even if we consider the respondent's claim that the Appellant did not confirm the authenticity of the audio clips to the Special Cell, this does not, at this stage, cast doubt on the Appellant's defense of truth. The Appellant's proactive steps in confirming the authenticity of the information, as outlined in their affidavit, uphold the integrity of their defense.
40. The respondent highlighted a concern that the Appellant has not disclosed the source of the audio clip and related information, arguing that this lack of transparency weakens the Appellant's defense of truth and thus, the defence of truth should not be accepted. In response, the Appellant cited the judgment in Manohar Lal Sharma (supra) and Section 15(2) of the Press Council Act, 1978, arguing that a journalist's sources are legally protected and confidential. Consequently, the Appellant asserted that they cannot be compelled to reveal their source. This Court, after examining the aforementioned judgment and Section 15(2) of the Press Council Act, 1978, concurs with the Appellant's position, affirming their right to keep the source confidential. This confidentiality, this Court reasons, does not weaken the Appellant's defense of truth, even if they choose not to disclose their source.
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41. Next is the defence of public interest. The argument presented by the Appellant's ld. senior counsel, emphasizing the right of the public to know, discuss, and debate the actions of their elected representatives, aligns with the principles of a transparent and accountable governance system. The interaction between an elected representative and an individual with a criminal background is a matter of public concern, as it potentially impacts the public trust and the representative's ability to perform their duties impartially and in the public's best interest.
42. The Respondent's counsel, in arguing against the broadcast, emphasized that the audio clip in question does not inherently serve the public interest. The key argument is that the audio clip represents a private conversation between two individuals, with one being the Respondent, a Member of the Legislative Assembly (MLA), and the other an individual with a criminal background. The counsel argued that this conversation, even if assumed to be authentic, was not conducted in the Respondent's capacity as an MLA and thus should be regarded as a private matter. The counsel stressed the importance of distinguishing between the public's curiosity and genuine public interest. According to this argument, not everything that garners public attention or curiosity automatically qualifies as being in the public interest. To bolster their argument regarding distinction between public interest and what interests the public, the Respondent's counsel relied on the judgment in Swami Ramdev (supra).
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43. This Court is not convinced with this argument on behalf of the respondent. The concept of public interest is paramount in a democratic society, particularly when it involves the conduct of elected representatives. The broadcast in question reveals a communication between an elected official and a person of questionable repute, which raises legitimate concerns regarding the integrity and responsibilities of public office. In a democracy, the electorate has a fundamental right to be informed about the actions and character of their representatives. This transparency is essential for the healthy functioning of a democracy, where elected officials are accountable to the public. The involvement of an elected representative in such communications, even if conducted in a private capacity, has implications for their public role and responsibilities. The public's right to be informed about such interactions is not just a matter of curiosity but a necessity in scrutinizing the integrity and conduct of those in public office. Furthermore, the judiciary has consistently upheld the importance of freedom of speech and expression, particularly in matters concerning public figures and issues of public interest. In this context, broadcasting the episode serves a larger purpose of informing the public, fostering transparency, and facilitating informed discourse, which are essential elements of a democratic society. Therefore, this Court is of the view that the broadcast of the episode is indeed in the public interest. It aligns with the democratic values of transparency, accountability, and the public's Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 44 of 58 right to be informed about the conduct of their elected representatives.
44. After evaluating the arguments from both sides, this Court determines that the respondent has not persuasively shown that the appellant's defenses of truth, fair comment, and public interest are bound to fail. At most, the respondent might be able to demonstrate a possibility of the appellant's defense failing. The respondent/plaintiff has only reached the threshold of 'may fail' in their argument, falling short of demonstrating that the Appellant's defence is 'bound to fail'. However, this possibility alone is insufficient to establish a prima facie case in favor of the respondent. To establish a prima facie case, the appellant's defense would need to be evidently bound to fail. Since this is not the case, a prima facie case in favor of the respondent cannot be established.
Balance of convenience and Irreparable loss.
45. The freedom of speech and expression, enshrined in Article 19(1)(a) of the Indian Constitution, is a fundamental right essential for a functioning democracy. It allows the press to act as a watchdog, holding public figures accountable and informing the public about matters of vital importance. In this case, the Ld. Senior Counsel for the Appellant argues that broadcasting the alleged conversation between the Respondent (elected representative) and Kapil Sangwan (outlaw) serves a significant public interest. The public has a right to know about their Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 45 of 58 representatives' conduct and any potential connections with individuals engaged in illegal activities. This information allows for informed public discourse and scrutiny of those entrusted with public positions. The public has a right to be informed about such matters, especially those involving their elected representatives. Preventing the broadcast could deprive the public of information that may be crucial for informed decision-making and public discourse.
46. On the side of the respondent/plaintiff, the right to reputation is indeed a significant concern. However, when juxtaposed with the collective right of the public to be informed about potentially serious matters involving public figures, the scale tilts in favor of the broader public interest. Restricting the Appellant's freedom of speech and the public's access to information can cause an irreparable harm to the democratic process and public discourse. It can create a chilling effect on investigative journalism and limit the ability of the press to hold public figures accountable. In weighing the competing interests, the balance of convenience leans towards the Appellant. The potential harm to the Respondent's reputation, though serious, may be mitigated and compensated through legal channels. In contrast, restraining the Appellant's free speech and withholding information from the public can have long-lasting negative consequences for democratic discourse and accountability. This view of this Court is also supported by the judgment in Khushwant Singh (supra) where it was held that a person holding public offices must not be thin Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 46 of 58 skinned in reference to the comments made on them and being a public figure necessarily has to volunteer his life for public examination in public interest.
47. Moreover, the potential damage to the respondent's reputation, while significant, does not equate to an 'irreparable loss' in the strictest sense, as reputational harm can often be remedied through legal channels, such as defamation suits and damages, if the broadcasted content is later proven to be false or defamatory.
48. Therefore, in considering the balance of convenience and the aspect of irreparable loss, the decision leans in favor of the appellant. The potential harm in restraining the press from broadcasting a matter of public interest significantly outweighs the potential reputational harm to the respondent. It is crucial for a democratic society to uphold the principle of freedom of speech and expression, particularly in contexts involving public interest and the role of the press as an information provider. Hence, the balance of convenience and irreparable loss is in favor of allowing the broadcast.
Other judgments relied on behalf of the Respondent
49. The Ld. Counsel for the respondent also cited the decisions in Swatanter Kumar (supra) and Patanjali (supra) as justifications for the correctness of the injunction issued by the Learned Trial Court. However, upon detailed examination, this Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 47 of 58 Court has determined that the circumstances of the current case differ significantly from those in the referenced judgments. The distinctions are dealt in detail in the succeeding paragraphs.
50. In the case of Swantanter Kumar (supra), the plaintiff was a distinguished lawyer and judge who served in the Hon'ble High Courts of Delhi, Punjab and Haryana, Bombay, and the Hon'ble Supreme Court of India for over 23 years. The Defendant No. 5 sent an affidavit to the Chief Justice of India on November 30, 2013, alleging an incident from May 2011 against the plaintiff. This implies that the alleged incident occurred about two and a half years before the affidavit was filed. Subsequently, Defendants No. 1 and No. 2 published a defamatory article on January 10, 11, and 13, 2014, while Defendants No. 3 and 4 also broadcasted defamatory news about the plaintiff. Notably, these publications and broadcasts were based on the copy of the affidavit dated November 30, 2013, in which the names of Defendant No. 5 and the plaintiff were blackened out, making it unclear that the plaintiff was the subject of the complaint. Thus, there was nothing to substantiate that how the defendants knew that the incident alleged in the affidavit is against the plaintiff. Moreover, in their defense, the defendants did not invoke the principles of truth and fair comment, hence the Bonnard Principle was not applied in that case. However, the present case differs significantly. First, the appellant has raised defenses of truth and public interest, invoking Bonnard's principle. Second, the appellant verified the audio/clips before Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 48 of 58 broadcasting, demonstrating due diligence. These crucial distinctions warrant a different outcome in the present case.
51. In the Patanjali case (supra), the defendants made allegations in May 2020, accusing the plaintiff of illegally selling Red Sander Wood, which was claimed to be against national interests. However, in this instance as well, the defendants did not assert defenses based on truth, fair comment, or public interest. Furthermore, even if such defenses had been presented, the defence was bound to fail. This is because, even before the defamatory content was published in May 2020, all charges concerning Red Sanders against the plaintiff were already dismissed by the order dated 16.09.2018 of the Learned Additional Commissioner of Customs and the plaintiff was actually authorized to export the same. Therefore, the Patanjali's case (supra) is also distinctly different from the current case in terms of its facts and therefore, it offers no support to the respondent's arguments.
Legality of the Trial Court's order
52. The primary rationale of the learned trial court's decision is encapsulated in paragraph 8 of the order, as transcribed below:
"8. I have given my thoughtful consideration on the submissions made on behalf of the parties. The defence taken by defendant is yet to pass through the stage of evidence which obviously includes the Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 49 of 58 chance to the plaintiff in form of cross examination of defendant witness. The defendant has not only broadcasted news against the plaintiff but also opened the discussion at national forum. Persons who participated in the debate were neither associates of gangster Nandu nor associates of plaintiff and they were not also the investigating agency to give any opinion at national level without verifying the facts themselves. Plaintiff is member of Assembly and the debate/discussion organized by the defendant is not in house discussion. Plaintiff himself has filed a complaint against Mr. Sachin Sangwan @ Nandu. Defendant himself mentioned in the written statement that matter is admittedly under investigation with the police of Special Cell Janakpuri. It is the admitted case where no facts/allegation were verified from the plaintiff regarding veracity of statements against plaintiff and defendant straight away broadcasted the news clip against the plaintiff. The defendant not observed the duties attached with the freedom enshrined under Article 19(1 )(a) Constitution of India so there is prima facie case in favour of plaintiff. In the judgment relied by plaintiff it is already observed that nobody can be allowed to defame other on the grounds that the injury will be compensated with money. No money can compensate the injury to the Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 50 of 58 reputation of a person so the plaintiff will suffer irreparable loss which cannot be compensated in terms of money, if the present application is not allowed. The defendant itself mentioned in the WS that the matter is under investigation with the police of Special Cell against Mr. Sachin Sangwan@ gangster Nandu. Nothing came on record that any FIR has been registered against the plaintiff for any such criminal activity of extortion etc. in connivance with Mr. Sachin Sangwan @ gangster Nandu so balance of convenience also tilts in favour of plaintiff."
53. After carefully examining the arguments and the impugned order and in view of the detailed analysis in the preceding paragraphs, this Court finds that in the facts and circumstances of the present case, the ld. trial court was incorrect in its application of legal principles to be followed in deciding the application seeking interim injunction against publication/broadcast in a suit for defamation. Ld. trial court's order suffers from several flaws which are as follows:
a. The ld. trial court erred in stating that the Appellant's defense has not yet been fully examined at that stage and that this justifies granting the injunction. This observation, however, does not align with the appropriate legal test under these circumstances. The correct test, as per the Bonnard Principle, Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 51 of 58 which was invoked by the Appellant, is whether the defense of the Appellant is bound to fail. Once the Appellant raised defenses like truth, fair comment, and public interest, the ld. trial court should have assessed whether these defenses were bound to fail, not simply conclude that the Appellant's evidence is yet to be examined.
b. The Ld. Trial Court's finding of a prima facie case in favor of the Respondent lacks convincing reasoning. It does not provide a clear explanation for why the alleged defamatory statement is likely untrue or why the defenses raised by the Appellant are bound to fail. As discussed in preceding paragraphs, this Court is of the view that the repsondent/plaintiff failed to prove prima facie case in its favour.
c. The ld. trial court expressed that the Appellant did not verify the authenticity of the audio clip. However, this view is contradicted by the affidavit filed by the Appellant before this Court, as discussed earlier. The Appellant has claimed that the clip was verified before broadcasting, which the trial court has not adequately addressed.
d. The ld. trial court's emphasis on potential harm to the Respondent's reputation does not appear to be balanced against the public interest in the content of the broadcast and the fundamental role of the press in a democratic society. The principles of irreparable loss and balance of convenience have been misapplied, as the trial court has not adequately considered the potential impact of stifling a Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 52 of 58 matter of public interest through the injunction. The potential harm to freedom of speech and the public's right to information are not adequately weighed against the potential harm to the Respondent's reputation.
e. In the impugned order, the Ld. trial court dismissed relevant judgments which were cited on behalf of the Appellant/defendant by categorizing them as pertaining to pre-publication matters. The stance taken by the Ld. trial court was based on the distinction that the case at hand involves a request for an injunction pertaining to material that has already been published, in contrast to the cited cases, which dealt with injunctions related to content or material that had not yet been published. This Court is of the view that the approach taken by the Learned trial court in differentiating between pre-publication and post-publication matters in the context of injunctions is erroneous. If an injunction is considered inappropriate for content before its publication, it is contradictory to apply it to content that has already been made public. The approach taken by the Ld. trial court overlooks the fundamental principles of law that should uniformly govern the issuance of injunctions, regardless of the publication status of the material. By summarily categorizing the cited judgments as pertaining only to pre-publication matters, the trial court has failed to recognize the broader legal implications these precedents hold for injunctions on published content. Therefore, in light of this argument, it is concluded that the Learned trial court Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 53 of 58 has erred in its approach of differentiating between pre-publication and post-publication matters. The aforementioned view of this Court is further substantiated by the judgments in Khushwant Singh (supra), Shashi Tharoor (supra) and Kailash Gehlot (supra).
ORDER
54. Before getting to the final order, one important aspect needs to be considered and the order shall be made accordingly. With its 24/7 operation and vast reach across print, electronic, and social media platforms, media wields considerable clout, impacting individuals and society at large. Social media's interactivity further amplifies its power, allowing viewers/readers to actively engage in and shape the narrative. This influence, coupled with the potential to significantly affect individuals' reputations and careers, demands ethical media practices. Moreover, the primary responsibility of media platforms is to distribute news and facilitate open discussions about it. However, this responsibility requires ensuring fair representation and equal voice to all stakeholders. When analyzing news or hosting debates, it's crucial for the media to provide equal and ample opportunities to all involved parties. This approach ensures that the audience can form opinions based on comprehensive information. Given the extensive reach of modern media, there is a heightened need for responsible reporting and Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 54 of 58 discussion facilitation. This crucial aspect will be considered in the final order/directions issued by this Court.
55. Upon careful examination of the case file, consideration of the arguments presented by both parties, and analysis of the cited judgments, this Court concludes that a prima facie case favoring the respondent/plaintiff is not evident. It appears that the balance of convenience and the risk of irreparable loss lean towards not granting an injunction. In fact, the balance of convenience and avoidance of irreparable harm seem to favor the Appellant over the imposition of a gag order. The three crucial principles - balance of convenience, establishment of a prima facie case, and prevention of irreparable loss and injury - do not align with the facts of the current case, leading to the decision that the injunction must be lifted without delay.
56. Consequently, the appeal is allowed, and the impugned order of the Ld Additional Senior Civil Judge-cum-In-charge Secretary-cum-Guradian Judge, Dwarka Courts, dated 06.09.2023, is set aside, subject to certain conditions. The conditions are put in view of the discussion in para 54. While publishing/broadcasting/telecasting of any news/report/article in print/electronic media based on the audio clip of the conversation between the respondent and Kapil Sangwan following conditions are to be fulfilled by the Appellant:
Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 55 of 58 a. Right to Rebuttal - If the news/report/article based on audio clip is published in print media, the respondent's perspective must be given adequate space in the write up. If the news/debate based on audio clip is broadcasted in electronic media, the respondent must be offered a fair opportunity to participate in news/debate. This participation can be facilitated through video conferencing or a physical presence in the studio. The respondent may himself participate in the news/debate or he may be represented by an authorized representative. To ensure the respondent has ample time to prepare and make himself available for participation in news/debate, he must be notified at least six hours in advance of any publication, broadcast, or telecast. This applies to both pre-recorded and live content. The respondent's contact information1, provided by his counsel to the appellant's counsel in court today, will be used for notification purposes. The appellant has the option to reach out to the respondent by using the provided contact numbers. If the respondent is unable to answer the call, or if their phone is switched off, out of reach, or the number is otherwise unavailable, the appellant can alternatively send a WhatsApp message on the said contact numbers. Sending a message via WhatsApp on the said contact numbers is 1 The Learned Counsel for the Respondent furnished three contact numbers, including the personal mobile number of the Respondent, to the Learned Counsel for the Appellant. Conversely, a specific contact number on behalf of the Appellant is provided to the Learned Counsel for the Respondent. Communications from the Appellant to the Respondent will be conducted through this designated number, and the Appellant may reach out to any of the three numbers shared by the Respondent. Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 56 of 58 considered adequate for fulfilling the requirement of notifying the respondent.
b. Disclaimer - In case of any news/debate etc. based on the audio clip is broadcasted in the electronic media, it must include a disclaimer in the subtitle, continuously running during the telecast, stating that "the allegations have not been proven in the Court of law and may not be correct." If the news/article etc. is published in the print media, the same disclaimer must appear in a prominent box placed within the middle of the article.
These conditions aim to ensure fairness and responsible reporting by granting the respondent a platform to express their perspective and protecting the parties' rights while the matter remains pending in court.
57. No order as to cost.
58. Needless to add that any observations made in the judgment are prima facie expressions on the matter of controversy and will not influence fair trial of the suit on merits.
59. The Ahlmad of this Court is directed to send a certified copy of this judgment to the Ld. Trial Court along with the record of the Ld. Trial Court. Also, the Ahlmad of this Court is directed to consign the appeal file to the record room, after completion of necessary formalities.
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60. Copy of order be given 'dasti'.
Pronounced in the open Court on 12.12.2023 (SUMIT DALAL) ADJ-04/SW, Dwarka Courts New Delhi/12.12.2023 Misc. Civil Appeal (DJ) No. 45/23 Times Now Navbharat Owned by Benett Coleman & Company Ltd. vs. Naresh Baliyan Page 58 of 58