Madras High Court
M/S.Menaka & Co vs M/S. Arappor Iyakkam on 6 December, 2018
Author: R.Subramanian
Bench: R.Subramanian
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
23.04.2019 03.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Original Application Nos.18, 25, 40, 41, 42, 43
& 44, 152, 204 and 275/ 2019
in CS Nos.21, 29, 42, 44, 45, 40, 41, 136, 163 and 199 of 2019
and Application No.1663 of 2019
in CS No.163 of 2019
M/s.Menaka & Co.,
(Paver Finishing Road Contractors),
Rep. By its Managing Partner,
M.Mahesh ... Applicant in OA No.18 of 2019
M/s.Sasi Constructions,
Rep. By its Managing Partner,
R.Sivabalan ... Applicant in OA No.18 of 2019
K.Subramani
Civil Contractor ... Applicant in OA No.40 of 2019
M/s.KCP Engineers Private Limited,
Rep. By its Managing Director,
K.Chandraprakash ... Applicant in OA No.41 of 2019
M/s.S.P. Builders
Rep. By its Proprietor,
R.Murugesan ... Applicant in OA No.42 of 2019
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K.Durvasulu,
Class-I Civil Contractor, ... Applicant in OA No.43 of 2019
R.V.Sathish Babu
Proprietor,
M/s. RVS Constructions ... Applicant in OA No.44 of 2019
M/s.T.M.Subramaniyam & Co.,
Rep by its Partner
T.S.S.Sharan Kumar ... Applicant in OA No.152 of 2019
S.P.Velumani ... Applicant in OA No.204 of 2019
Varadhan Infrastructure,
A Registered Partnership firm
Rep by its Partner
Manikandan ... Applicant in OA No.275 of 2019
S.P.Velumani ... Applicant in A No.1663 of 2019
Vs
1. M/s. Arappor Iyakkam,
Rep by its Convener,
Jayaram Venkatesan
2. Jayaram Venkatesan,
Convener, Arappor Iyakkam. ... Respondents in all the petitions
Prayer: Original Applications are filed under Order XIV Rule 8 of the
Original Side Rules read with Order XXXIX Rules 1 and 2 of the Code of
Civil Procedure, praying to
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in OA Nos.18, 25, 40, 41, 42, 43, 152 of 2019
(i) grant an order of ad-interim injunction, restraining the
respondents/defendants their men and agents from in any manner, holding
any press meet, releasing or distributing any statement to the Print and
Electronic Media or to any one against the applicant/plaintiff and its business
imputing the character or insinuating the reputation or linking the name of
the applicant/plaintiff with any person(s) or defaming the name of the
applicant/plaintiff in any manner, pending disposal of the above suit.
in OA No.204 of 2019
(i) grant an order of ad-interim injunction, restraining the
respondents/defendants and their men and agents or any other persons
claiming through them, from in any manner, publishing any further
defamatory articles, statements, photos or caricatures imputing the
character or insinuating the reputation or linking the name of the applicant
with any person or defaming the name of the applicant and in any manner
by holding any press meet, releasing or distributing any statement to the
Print and Electronic Media or unloading any messages, videos, into Face
book, twitter, Whatsapp and other websites and all other forms of online
videos/messages pending disposal of the above suit.
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in OA No.275 of 2019
(i) Pleased to interim injunction restraining the defendants and their
men and agents or servants from in any manner, holding any press meet,
releasing or distributing any statement to the print and Electronic Media or to
any one as against the Plaintiff and its business which would be damaging
the character of the Plaintiff as a firm or the persons who are in charge of
the affairs of the plaintiff, pending disposal of the suit.
in A No.1663 of 2019
(i) Pleased to pass an order of interim direction directing the
respondents/defendants and their men and agents or any other persons
claiming through them immediately remove all the defamatory uploaded
messages, videos, from Fact book, twitter, Whatsapp, Websites and all
other forms and online videos/messages linking the applicant's name in any
form with anybody, pending disposal of the suit.
For Petitioner : Mr.S.Doraisamy
in OA Nos.18, 25, 40, 41, 42, 43 & 44, 152/19
: Mr.Mr.T.R.Rajagopalan, SC
for M/s. V.Elangovan in OA No.204/19 & A.1663/19
: Mr.A.Sathiyamurthi
in OA No.275 of 2019
For Respondents : Dr.V.Suresh,
for the 1st respondent in all the petitions
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Ms.R.S.Akila,
for the 2nd t respondent in all the petitions
C O M M ON O R D E R
All these Original Applications have been filed seeking identical orders of injunction restraining the respondents from holding any press meet, releasing or distributing any statement to the Print and/or Electronic Media or to any one against the applicants/plaintiffs and the business carried on by them imputing the character or insinuating the reputation or linking the name of the applicants/plaintiffs with any person/persons or defaming the name of the applicants/plaintiffs in any manner pending disposal of the respective suits.
2. The Suit in CS No.163 of 2019 has been filed by one Thiru.S.P.Velumani, a Minister seeking damages to the tune of Rs.1,00,01,000/-, as compensation for the loss of reputation suffered by him due to the sustained false propaganda carried out by the respondents/defendants against him. The other Suits have been filed by independent Contractors, who are engaged in carrying out contract works awarded to them by the various Municipal Corporations in the State claiming http://www.judis.nic.in 6 damages for the alleged acts of defamation.
3. According to the plaintiffs, the respondents are indulging in a smear campaign against them with a sole object of defaming them and causing loss of reputation. While, it is claimed by the plaintiff in CS No.163 of 2019 that the respondents are linking his name with various Contractors claiming that they are either his henchmen or benamies and he along with the said contractors have been indulging in acts of corruption, thereby causing loss to the ex-chequer, it is the case of the Contractors/plaintiffs in other suits that they have nothing to do with the plaintiff in CS No.163 of 2019. They are doing business as reputed contractors doing Government works for several decades and the false claims made by the respondents linking them to the plaintiff in CS No.163 of 2019 and accusing them of Corruption had damaged their reputation entailing them to damages. Pending the above suits, these applications have been filed seeking injunction as aforesaid.
4. Since the case of the parties in all the above applications is substantially similar and the grievance of the plaintiffs is also the same, these applications are disposed of by a common order. http://www.judis.nic.in 7
5. The common grievance of the applicants as culled out from their affidavits is as follows:
5.1. The applicant in OA No.204 of 2019 is the Local Administration Minister, State of Tamil Nadu, having been elected as a member of the Legislative Assembly representing Thondamuthur Constituency in the elections held in May 2016. It is claimed that he is an Income Tax assessee with good reputation among the General Public, Government Officials, his Party Members, friends and family. While he was discharging his duties State as a Cabinet Minister to the best of his abilities, the first respondent claiming to be a Non-Governmental Organisation, registered under the Indian Trusts Act, 1882 and the second respondent claiming himself to be a Convener of the first respondent had started publishing false news items repeatedly in the Print, Electronic and Online Media (Social Media) alleging that he is misusing his powers and is involved in large scale favouritism, rigging of tenders, forming of cartels and syndicates, thereby ensuring that the Government Contracts are awarded only to select few contractors enabling them to make huge profits at the cost of the ex-chequer. It is further claimed that the favoured contractors are either his henchmen or benamies.
http://www.judis.nic.in 8 5.2. The respondents have also filed various complaints before the Directorate of Vigilance and Anti-corruption, Chennai on 12.09.2018 and 01.11.2018. A Writ Petition has also been filed by the first respondent in WP No.34845 of 2018, seeking a Writ of Mandamus, directing the Vigilance and Anti-Corruption Department to register an FIR, on the basis of the complaints after obtaining prior permission under Section 17(A) of the Prevention of Corruption Act. A further prayer has also been made seeking the constitution of a Special Investigation Team to conduct a time bound enquiry. It is stated that the said Writ Petition is pending.
5.3. The applicant would further contend that without waiting for, either the disposal of the Writ Petition or any action to be taken by the Directorate of Vigilance and Anti-Corruption, the respondents started uploading a number of videos, false news items with incorrect particulars/details via Social Media namely, Twitter, Whatsapp, YouTube, etc. These messages uploaded on the Social Media by the respondents, according to the applicant, are invariably false containing defamatory and insinuatory allegations against the applicant and other contractors. It is the primary contention of the applicant that these messages uploaded on the Social and Print Media by the respondents are without any basis and have the effect of tarnishing, his image as a Minister and active politician. http://www.judis.nic.in 9 5.4. According to the applicant, the respondents having approached the Competent Authority by way of complaints, seeking registration of FIR have to wait for the conclusion of the enquiry that is to be commenced. It is also claimed that by making continuous propaganda of the false allegations, the respondents are interfering with the judicial process. On the above contentions, the applicant seeks an order of injunction.
5.5. The other applicants, who are Contractors, put forth the substantially similar claim in support of their applications for injunction. They would add that they are doing their business as Government Contractors and the fact that they are able to garner more tenders at the competitive bidding process alone cannot, at any stretch of imagination, be termed as corrupt practice. It is their further contention that the false propaganda made in the Social Media affects their reputation as well as their business.
6. A common counter affidavit has been filed by the respondents, wherein, it is contended that the applicants cannot seek a gag order. The respondents would contend that the applications for injunction or in effect applications inviting this Court to restrain the respondents from exercising their Fundamental Right of Freedom of Speech and Expression. It is also http://www.judis.nic.in 10 claimed that the first respondent namely, Arappor Iyakkam is a Non- Governmental organisation registered under the Indian Trust Act, even in the year 2015. It is involved in various activities for the benefit of the General Public and the Nation. It has the following as its objects:
a. Improving transparency and accountability in public institutions b. To take issues of corruption by public officials and elected representatives and enforcing rule of law in terms of government functioning.
c. Compliance by governance institutions to constitutional principles.
d. Implementation of development programs and formulation of welfare schemes so as to subserve the constitutional goals of achieving a just, fair and equitable society. e. To give effect to the broad constitutional principles, in practical terms we work on the ground with citizen’s groups, local welfare associations, professionals and concerned citizens on issues of public concern like restoration of waterbodies, improving quality of Government Hospitals with a view to ensure that the marginalized and weaker sections are http://www.judis.nic.in 11 able to access and obtain quality health services. f. Arappor Iyakkam has done citizen led audits of many waterbodies in and around Chennai and represented to the concerned officials. We have so far audited around 25 waterbodies and our efforts on waterbodies led to the restoration of the Villivakkam lake which is currently in progress.
g. Arappor Iyakkam has been creating awareness on citizen’s rights by using RTI and other enabling laws including the Constitution of India in more than 50 different locations. Recently, we also trained around 200 Government servants i.e. public information officers and appellate authorities on RTI.
h. Arappor Iyakkam works for public welfare and also renders services to the needy. Arappor Iyakkam has been doing petition camps in the slums helping the poor to access Government schemes such as Old age pension, Widow pension etc and also to help them address their grievances on Government services.
6.1. It is claimed that the second respondent who is the convener of http://www.judis.nic.in 12 the first respondent is a Post Graduate possessing Master of Science in Electrical Engineering from University of Cincinnati, Ohio, USA. He had worked as Vice President of Countrywide Research in California, USA. It is claimed that he returned to India only to work on social issues and he has taken up teaching as his profession.
6.2. The first respondent would further contend that the subject matter of the present proceedings, namely the issues or complaints made by the first respondent on 12.09.2018 and 01.11.2018 to the Directorate of Vigilance and Anticorruption, pointing out the role of the applicants in large scale favouritism and Corruption in handling huge contracts awarded by the Chennai City Municipal Corporation and the Coimbatore City Municipal Corporation. It is their further claimed that the respondents have collected details by way of applications under the Right to Information Act and based on the said details have published various News items in the Social Media as well as the Print Media setting out their views on the activities of the applicants and other Government Contractors, who, according to them, are in collusion with the Minister for Local Administration.
6.3. Since the Directorate of Vigilance and Anticorruption, had not taken action on their complaints they had also followed it up with the Writ http://www.judis.nic.in 13 Petition in WP No.34845 of 2018, which has been admitted and pending before this Hon’ble Court. It is also stated certain interim orders have been passed in the said Writ Petition. It is stated that after lodging of the complaints, the respondents got further details as additional evidence, regarding the alleged corrupt activities of the applicants. With a view to enlighten the General Public and in recognition of the right of the General Public to know the happenings in the Municipal Corporations and other Government Bodies, the respondents had held Press Meets and released the information obtained by them through legal sources. It is also claimed that these messages uploaded on the Social Media are not mere repetition, but are based on new discoveries.
6.4. The sum and substance of the counter affidavit of the respondents is that whatever they are doing is in exercise of their Fundamental Right of Free Speech and Expression. In exposing what they term as corrupt activities, they are discharging their duty as citizens and they cannot be prevented from doing so. The respondents would also justify their actions by pointing out that the substance of the complaints/allegations made by them, can be substantiated by them by producing necessary material at trial. It is contended that once a plea of justification is made, there cannot be an injunction restraining publication of the alleged http://www.judis.nic.in 14 defamatory material. It is also contended that the remedy of the applicant is to seek damages on proof that the allegations are false or untrue. A pre-trial injunction is an extra-ordinary remedy and the same cannot be granted, when the respondent takes the plea of justification.
6.5. A common reply affidavit has been filed by the respondents, wherein, it is claimed that the allegations are absolutely false. In the absence of any material to show that there is prima facie truth in the allegations made by the respondents, a pre-trial injunction could be granted, so as to avoid further loss of reputation. It is also pointed out that the remedy by way of damages cannot in all circumstances termed to be an adequate remedy for defamation, since the damage is done by the time trial takes place and compensation by way of damages is awarded.
6.6. It is further reiterated that the respondents having approached the Competent Authority, seeking registration of an FIR on the basis of the complaint lodged by them and having followed it up with the filing of a Writ Petition in this Court, seeking a direction ought to have waited for conclusion of the proceedings cannot resort to making publications and putting up messages in the Social Media, which would have the effect of impeding the judicial process.
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7. On the above allegations and counter allegations made the following points arise for determination:
1) Whether the applicants could seek an order of pre-trial injunction particularly restraining the respondents from making various allegations which according to the applicants are per se defamatory in the Print and the Social Media?
2) Whether the action of the respondents repeatedly publishing such allegations would amount to interference with the judicial process?
8. I have heard Mr.T.R.Rajagopalan, learned Senior Counsel appearing for Mr.V.Elangovan, for the the applicant in OP No.204 of 2019 in CS No.163 of 2019, Mr.S.Doraisamy, learned counsel appearing for the applicants in OA Nos.18, 25, 40, 41, 42, 43 & 44, 152/19, Mr.A.Sathiyamurthi, learned counsel appearing for the applicant in OA No.275 of 2019, Dr.V.Suresh, learned counsel appearing for the 1st respondent in all the applications and Ms.R.S.Akila, learned counsel appearing for the 2nd respondent in all the applications. http://www.judis.nic.in 16
9. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the applicant in OA No.204 of 2019 would vehemently contend that the respondents cannot be allowed to keep on repeatedly publishing through Print and Social Media, the allegations, which according to him, are false and unsubstantiated, thereby causing loss of reputation to the applicant. He would further point out that the respondents had made complaints to the Appropriate Authority namely, the Directorate of Vigilance and Anticorruption, and it is for the authority concerned to take action in accordance with law. Complaining that there has been substantial delay on the part of the authority concerned, the respondents have also approached this Court in WP No.34845 of 2018, seeking a direction in the form of a Writ of Mandamus. The said Writ Petition is pending consideration by a Division Bench of this Court.
10. While things stood thus, the respondents have gone about holding various Press Meets making wild allegations which are repetitive in nature. The respondents have also taken to the Social Media like Twitter, Facebook, Whatsapp, YouTube, etc., to cause wide publicity to the unsubstantiated http://www.judis.nic.in 17 allegations. Taking me through the contents of the various allegations made, the learned Senior Counsel would point out that none of the allegations can be substantiated by the respondents. He would also claim that the respondents have recklessly used the words benami and henchmen. The learned Senior Counsel would further submit that being a politician, who rose from the ranks, he is bound to have friends as well as foes. The mere fact that some of the contractors belong to his native place and that they are either his friends or that they are belong to the same political party would not by any stretch of imagination, mean that they are binamies and all his actions are directed only to favour the select few.
11. Mr.S.Doraisamy, learned counsel appearing for the applicants/Contractors would contend that they are independent Companies or individuals, who have been doing Government works for several years and after the introduction of the Tamil Nadu Transparency in Tenders Act, the entire process of tendering has become highly transparent and most of it is conducted online, therefore, there is very little or no chance of any favouritism in grant of online tenders. Mr.S.Doraisamy, learned counsel would also further argue that being contractors engaged in doing Government work alone cannot expose the applicants to attacks from all and sundry.
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12. Inviting my attention to the language used in the publications/social media messages, Mr.Doraisamy would strenuously contend that such false, unsubstantiated allegations will have the effect of irreparably damaging the reputation of the applicants and damages alone cannot be said to be an adequate remedy. Therefore, according to him, the applicants must be protected by an order of injunction. Mr.S.Doraisamy, has also relied upon various precedents in support of his contentions.
13. Contending contra, Dr.V.Suresh, learned counsel appearing for the 1st respondent would submit that the very prayer for injunction which is in the nature of gag order cannot be granted. He would forcibly argue that right from the days of the Bonnard v. Perryman, reported in 1891 (2) CH 269, Courts have held that a pre-trial injunction is not an appropriate remedy. He would also point out that the principle that was evolved in Bonnard v. Perryman, as early as in 1891, still holds good and the Right to Free Speech being a right protected under the Constitution of India is a right which the individual should possess in public interest. He would also submit that the pre-trial injunction order cannot be granted until it is established clearly that the alleged libel is untrue or made with a mala fide intention. http://www.judis.nic.in 19
14. Pointing out to various materials gathered by the respondents in the form of replies received for the queries under the Right to Information Act, Dr.V.Suresh would contend that all the allegations made by the respondents could be substantiated by them and once, the respondents plead justification, a pre-trial injunction shall not be issued. It is the further contention of Dr.V.suresh that all that the respondents are doing is to expose, what according to them, constitutes corrupt activities and they are doing so only in public interest. The Right to Free Speech would also take in, the right of the public to know. The right to be left alone or the right to privacy cannot be invoked by the respondents, inasmuch as, they are either public servants or persons dealing with public money. He would further point out that tenders for several works involving several Crores of rupees have been either withdrawn or stopped after the revelations made by the respondents. That by itself according to him, would show that the claims made by the respondents are not unsubstantiated.
15. Arguing further, Dr.V.Suresh would submit that the very fact that some of the Contractors have come forward to implement remedial measures in some areas wherever the works done by them were shown to be substandard or not confirming to the required standards would show that there has been a public awakening due to the sustained campaign carried http://www.judis.nic.in 20 out by the respondents. But for the revelations made nobody would be interested in public works and the infrastructure facilities would remain as poor as they are today, enabling the contractors to make money to the detriment of the public.
16. In answer to the contention of Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the applicant in OA No.204 of 2019, Dr.V.Suresh, learned counsel appearing for the first respondent would submit that the judicial process has not yet started. The Directorate of Vigilance Anticorruption has not even launched the preliminary enquiry. Therefore, it cannot be said that making repeated publications would prejudice the judicial process. He would also deny the very claim that the publications are only repetitions. He would point out that the subsequent publications or propaganda in Social Media or Print Media has been made, based on new material that was obtained subsequently and therefore, it cannot be said that there has been a repeated publications with a view to damage the reputation of the applicants.
17. Answering the contention of Mr.S.Doraisamy, learned counsel appearing for the Contractors that merely because the Contractors are doing public work, they cannot be said to be public servants and they cannot be http://www.judis.nic.in 21 exposed to attack from the respondents, particularly when the attacks result in loss of reputation, Dr.V.Suresh would submit that once their business involves public money, their activities are liable to be microscopically examined by each and every citizen. They cannot take shelter under the right to privacy. Even the right to privacy is limited only to the private life and not their public life or their business transactions with the Government or the Non-Governmental Organisations.
18. Ms.R.S.Akila, learned counsel appearing for the 2nd respondent would submit that all that the respondents are doing only to expose corruption and to prevent public money from being doled out to select few contractors. The learned counsel appearing for the respondents would also draw my attention to various replies received under the Right to Information Act, from the Statutory Authorities to show as to how the tenders have been manipulated by the applicants and others. The fact that competing tenderers have used the IP address to submit their tenders is also pointed out that the important circumstance to show prevalence of formation of syndicates and cartels in obtaining Government Contracts.
19. I have considered the rival submissions.
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20. The law relating to pre-trial injunction particularly in cases of defamation is rather well settled, the following rule evolved in Bonnard v. Perryman reported in 1891 (2) CH 269, “…. The right of free speech is one which it is for the public interest that individuals should possess, and …. 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….” still holds good. The same has been accepted and applied by various High Courts as well as the Hon’ble Supreme Court in several decisions. The duty of the Court while considering applications for pre-trial injunctions is to balance the rights of the contesting parties.
21. No doubt true that such balancing becomes difficult in certain situations, where the right to privacy which has also been recognised as a fundamental right, conflicts with the right to freedom of speech. The http://www.judis.nic.in 23 enforcement of these two rights requires the Court to strike a very delicate balance which at times proves an insurmountable task. However, from the material that is available on record, I do not think that I face either an insurmountable or daunting task in the case on hand.
22. In R.Rajagopal @ R.R.Gopal and another v. State of Tamil Nadu and Others reported in 1994 (6) SCC 632, the Hon’ble Supreme Court has laid down the following principles, while considering the law relating to grant of pre-trial injunctions.
" (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article
21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent _ whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
http://www.judis.nic.in 24 (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above _ indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements http://www.judis.nic.in 25 which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.
(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for http://www.judis.nic.in 26 defaming them.
(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.
(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”
23. On the facts of this case, it is clear that no mala fides could be attributed to the respondents. Although a feeble attempt was made by the learned counsel appearing for the applicants to project that the entire publications have been made by the respondents at the instance of a rival political party, I find that there is no material to support the said contention. None of the affidavits filed in support of the applications or in the reply affidavits such a plea has been projected. A photograph of the 2nd respondent meeting the rival Political Party Leader alone cannot be used to draw a presumption that the actions of the respondents stem out of malafides. Therefore, the question of malafides cannot be urged in the cases on hand.
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24. Insofar as, the applicant in Original Application in OA No.204 of 2019 is concerned, he is undoubtedly a public servant and in a democratic set up his actions are open to microscopic examination by all concerned. He cannot claim immunity or right to privacy, insofar as, comments made on his official functions, I hasten to add that the same shall not apply, if the comments made are regarding his private life. It is not the case of the applicant in Original Application in OA No.204 of 2019 that the publications/allegations made touch upon his private life. All the allegations made are only with reference to his functions as a Minister, of course, according to him, those allegations are unsubstantiated and false.
25. The respondents have specifically pleaded justification. When a plea of justification has been made, the Courts will be slow to grant an injunction, as Lord Denning observed in Fraser v. Evans [1969 I All E.R.8], “The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says that he intends to justify it or to make fair comment on a matter of public interest.
That has been established for many years since Bonnard v. Perryman. The reason sometimes http://www.judis.nic.in 28 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 be out.” The Hon’ble Division Bench of this Court has followed the above principles set out in Fraser v. Evans in R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and others v. J.Jayalalitha and another reported in 2006 (2) LW
377. The same question of defence of justification was also a subject matter of recent decisions of the Queen’s Bench in Greene v. Associated Newspapers Ltd, reported in [2004] EWCA Civ 1462, wherein it was observed as follows:
“57. This survey of the case law 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 http://www.judis.nic.in 29 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. And if it s 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 Kbashoggi v. IPC Magazines Ltd [1986] 1 WLR 1412, 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 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)”.
26. A similar question relating to a pre-trial injunction was considered by a learned Single Judge of the Delhi High Court in Tata Sons Limited v.
Greenpeace International & Another, reported in 2011 SCC online Del 466, after referring to almost the entire case law in subject right from Bonnard v. Perryman till Greene v. Associated Newspapers Ltd, Hon’ble Mr.Justice S.Ravindra Bhat, as he then was, concluded as follows:
“57. 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 http://www.judis.nic.in 30 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 http://www.judis.nic.in 31 free discussion"”.
27. I will fail in my duty, if I do not advert to the observations of the Hon’ble Supreme Court in kartar Singh & Others. V. State of Punjab, reported in AIR 1956 SC 541, wherein the Hon’ble Supreme Court recalled the observations of the Queen’s Bench in Seymour v. Buttenworth, [[1862] 3 F & F 372, 376, 377], which read as follows:
“Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time” In R. v. Sir R.Carden, [[1879] 5 QBD 1], it was observed that “whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office”
28. After quoting the above observations, Hon’ble Justice N.H.Bhagwati, observed as follows:
http://www.judis.nic.in 32 “Public men in such positions may as well think it worth their while to ignore such vulgar criticisms and abuses hurled against them rather than give importance to the same by prosecuting the persons responsible for the same.” of course, the above observations of the Hon’ble Supreme Court arose in the context of the Criminal prosecution launched under the Punjab Security of the State Act, 1953, I have little doubt that these observations would apply to the present case on hand also.
29. In Taseko Mines Limited v. Western Canada Wilderness Committee, reported in 2017 BCCA 431, the Court of Appeal for British Colombia had considered the question of pre-trial injunctions in the matters of defamation. The Court of appeals considered the importance of free expression for proper functioning of democratic governance and quoted, with approval, the following passage from Grant v. Torstar Corp., reported in 2009 SCC 61, “[52] By contrast, the first two rationales for free expression squarely apply to communications on matters of public interest, even those which contain false imputations. The first rationale, the proper functioning of http://www.judis.nic.in 33 democratic governance, has profound resonance in this context. As held in WIC Radio, freewheeling debate on matters of public interest is to be encouraged, and must not be thwarted by “overly solicitous regard for personal reputation” (para. 2). Productive debate is dependent on the free flow of information. The vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself:
“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (emphasis added).
[53] Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court- established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that http://www.judis.nic.in 34 it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.
[54] The second rationale -- getting at the truth -- is also engaged by the debate before us. Fear of being sued for libel may prevent the publication of information about matters of public interest. The public may never learn the full truth on the matter at hand.
30. An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. At this juncture, the Court is called upon to decide on the grant or otherwise of pre-trial injunction based on allegations http://www.judis.nic.in 35 and counter allegations made in the form of affidavits and certain records that are produced. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. A plea of justification has also been raised in all these cases.
31. Of course, the applicants would project their right of privacy or their right to be left alone as a basic ground for seeking pre-trial injunction.
Both Mr.T.R.Rajagopalan, Senior Counsel appearing for the applicant in OA No.204 of 2019 and Mr.S.Doraisamy, learned counsel appearing for the applicants in the connected applications would place substantial reliance on Justice K.S.Puttaswamy and Ors v. Union of India and Ors., reported in 2017 (6) MLJ 267, the judgment of the learned Single Judge of the Delhi High Court in Swami Ramdev v. Juggernaut Books Pvt Ltd & Ors, and the judgment of mine in Ms.Kanimozhi Karunanidhi v. P.Varadarajan and others, reported in 2018 (3) CTC 710, wherein the right to privacy which was held to be a fundamental right in Justice K.S.Puttaswamy and Ors v. Union of India and Ors., was considered and applied in order to grant a limited injunction restraining publication of details of the private life of the applicant.
http://www.judis.nic.in 36
32. As I have already pointed out none of the publications attributed to the respondents have any reference to the private life of the applicants or their associates. Even in Ms.Kanimozhi Karunanidhi v. P.Varadarajan and others, I had referred to the report of the Committee experts which sets out the exceptions to right to privacy. They are
1. National Security
2. Public Order
3. Disclosure in Public Interest
4. Prevention, Detection, Investigation and Prosecution of Criminal Offences and
5. Protection of the individual or of the rights and freedom from others.
To borrow the words of Hon’ble Justice Dr.D.Y.Chandrachud, Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.
33. From the above observations, it is clear that all publications cannot be prevented in the guise of protection of right to privacy. Even in Swami Ramdev v. Juggernaut Books Pvt Ltd & Ors, a specific finding http://www.judis.nic.in 37 was recorded by the learned Judge that the offending portions of the Book titled “Godman to Tycoon, the untold story of Baba Ramdev”' related to his private life and hence invaded his right to privacy. It is on such finding, the learned Judge thought it fit to grant an order of injunction restraining the publisher from publishing the book without removing the offending portion. There again there was no blanket injunction for publication. Even in Justice K.S.Puttaswamy and Ors v. Union of India and Ors., the Hon’ble Supreme Court has taken care to define the parameters of the right to privacy. If the offending publications do not relate to the private life namely, personal intimacies, procreation, education of children, marriage, sexual orientation and the sanctity of family life, the same cannot be said to invade the right to privacy or the right to be left alone. I am therefore of the considered opinion that the injunction sought for cannot be granted on the ground that it invades the right of privacy of the applicants.
34. The issue does not end here as the applicants also anchor their case on another ground namely, offending publications are false unsubstantiated and without basis. The defence that is projected by the respondents to the said contention of the applicants is that is one of justification and fair comment. In the light of the stand taken by the applicants and the defence projected by the respondents, it becomes http://www.judis.nic.in 38 necessary to examine, as to whether, the libel complained is wholly untrue and it is incapable of being proved as I am, at this stage, concerned only with the grant of injunction.
35. In Gatley on Libel and Slander 8th Edition para 1574 page 641, it has been observed, “When once a defendant says that he is going to justify, the words complained of, there is an end of the case so far as an interim injunction is concerned”.
In Halsburry’s Laws of England, 4th edition vol.28 para 163 page 87, it is observed, “It is well settled that no injunction will be granted if the defendant states his intention of pleading a recognised defence, unless the plaintiff can satisfy the court that the defence will fail. This principle applies not only to the defence of justification but also the defences of privilege, fair comment, consent and probably any other defence”.
In Fraser v. Evans and others, 1969(1) All England Law Reports 8, it was held that the Court will not restrain publication even though it is defamatory, http://www.judis.nic.in 39 if the defendant pleads justification or a right to make fair comment on the matter of public interest.
36. There can be no doubt that the publications relate to the matters of public interest, inasmuch as, the attempt is to bring out, what the respondents term as corrupt practices in award of contracts relating to works by Municipal Corporations which undoubtedly use public money. Therefore, it is crystal clear that the publications are made in public interest.
37. The next aspect to be considered is the defence of justification pleaded by the respondents. In the counter affidavit filed, the first respondent has set up the share holding patterns of various Companies which have been favoured with the contracts and they have also obtained information under the Right to Information Act. The Directorate of Vigilance and Anticorruption had in fact written to the Chief Secretary to Government, Government of Tamil Nadu, seeking permission to register a preliminary enquiry as per Section 17 (A) (1) of Prevention of Corruption Act. The details of the works and the defects that are found in the said works have also been compiled in the form of a type set.
http://www.judis.nic.in 40
38. A representation made by the contractors to the Commissioner of Chennai Corporation dated 06.12.2018 has also been produced. The said representation sets out the unhealthy trend prevailing in award of contracts by Chennai Corporation. Nearly 52 Registered Contractors were signatories to the said representation. The said representation specifically alleges that the practice of formation of cartels and syndicates is prevalent in the tenderers floated by the Chennai Municipal Corporation. A tabular column prepared by the first respondent based on the replies received by it from the Statutory Authorities under the Right to Information Act, has been produced. A perusal of the same shows that several tenders which were awarded were cancelled by the Corporation on the satisfaction that there had been irregularities in grant of the said tenders. Though the learned counsel appearing for the applicants would argue that these tabular statements have been made without any basis, I find little substance in the said argument, inasmuch as, the tabulated statements are backed by information obtained under the Right to Information Act.
39. It is also further shown that for several tenders there have been only two bidders and in some cases both the competing bidders have submitted their bids from a common IP address. Insofar as, the contracts relating to the year 2014, awarded by the Coimbatore Corporation, for nearly http://www.judis.nic.in 41 12 contracts they are only two bidders namely, KCP Engineers Pvt Limited and P.Senthil & Co. Similarily, for more than 20 contracts awarded by the Coimbatore Corporation during the year 2015 also, there are only two bidders namely, P.Senthil & Co. and Rajan Rathnasami. It is also shown that many of the bidders have common interest.
40. I desist from going into finer details of these particulars provided in the form of type sets, since I am considering only the prima facie case for grant of interim injunction. I am afraid that I will be trespassing into the other territory, which is the subject matter of the Writ Petition filed by the respondents. Hence, I do not propose to examine these aspects in great detail. However, I must record that from the material that has been placed in the form of typed sets containing information collected under the Right Information Act and other public documents, I am prima facie satisfied that the compliant or allegations made by the respondents cannot be brushed aside as false or unsubstantiated. Even assuming that the material produced has been obtained by illegal means, it cannot be totally disregarded as held by the Hon'ble Supreme Court in Magraj Patodia v. R.K.Birla & others reported in AIR 1971 SC 1295, wherein it was observed as follows:
“20. .... But the fact that a document was procured by http://www.judis.nic.in 42 improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness proved. But while examining the proof given as to its genuineness the circumstances under which if came to be produced into court have to be taken into consideration......” The above view was reiterated by the Hon'ble Supreme Court in Pushpadevi M. Jatia vs. M.L. Wadhavan and Ors, reported in 1987 (3) SCC 367.
41. It should also be pointed out that apart from the respondents several other Newspapers, Biweekly Magazines and other Online News Channels have been publishing various news items and articles relating to the alleged corrupt practices involving the applicants and others. As rightly pointed out by Dr.V.Suresh, the present dispute is not one between a Media Office and a Politician. The first respondent is association of persons or an association of individuals who are attempting to bring out, what according to them, is systematic corruption that had made in road into every field today. It is also claimed that the first respondent is involved in bringing out other social issues apart from the alleged corrupt practices. http://www.judis.nic.in 43
42. Dr.V.Suresh, would also invite my attention to several news articles published in various Newspapers which demonstrate that there is a social awakening and public upraising against the contractors who attempt to do substandard works. Many of the news items and articles reveal that substandard works done by the contractors have been stopped due to public participation and the contractors have been forced to mend their ways and carry out the work properly, according to the prescribed standards. This has become possible only due to the sustained campaign carried out by the first respondent and other likeminded persons. It is a common knowledge that in several parts of the City today, the level of the reads has gone over and above the houses and other buildings. This according to Dr.V.Suresh is due to the relaying of the roads without proper milling being done.
43. Some of the Articles and News Items that has been placed before me show that public have taken keen interest in the works that are being carried out by the contractors and in some cases have been prevented the contractors from carrying out the work without proper milling. This kind of public awareness is possible only when the requirements of the work to be carried out by the contractors is brought to the notice of the public. This cannot be achieved if such persons who venture to bring out such irregularities despite the hostile atmosphere they face are gaged by orders http://www.judis.nic.in 44 of injunctions.
44. Dr.V.Suresh would also invite me to the fact that certain tender conditions were altered to suit the needs of the select few contractors. As already been pointed out, I do not think, I should dwell into the finer details based on the material that has been placed before me, as I am concerned only with the prima facie case relating to the injunction sought for. For the foregoing reasons, I find requisite prima facie material in support of the plea of justification raised by the respondents.
45. I have already dealt with the law relating to pre-trial injunctions and an analysis of the judgments quoted above would show that grant of pre-trial injunction in cases of libel is not automatic and unless it is shown that all defences would fail injunction should not be granted. The above discussion on the factual aspects would demonstrate that such a conclusion i.e. all defences would fail cannot be presumed at this juncture.
46. Mr.S.Doraisamy, learned counsel appearing for the contractors would contend that they should be kept on a different pedestal and as businessmen engaged in Government works their reputation as such should be protected. They cannot be exposed to reckless criticism and http://www.judis.nic.in 45 unsubstantiated allegations of collusion or corruption. The sum and substance of the argument of Mr.S.Doraisami is that the contractors doing Government work are not public servants and such limitation that applied to the public servants cannot be applicable to them. I am unable to agree with the said contention because the contractors doing Government Work or dealing with public money and they are paid out of public money. Their conduct or their actions are definitely subject to scrutiny by the public.
47. Mr.S.Doraisamy, learned counsel appearing for the contractors would draw my attention to the judgment of the Queen’s Bench in Taveta Investments Limited v. the Financial Reporting Council and others, reported in 2018 EWHC 1662. Drawing my attention to para 97 of the said judgment, Mr.S.Doraisamy would submit that the Queen’s Bench had in fact held that the Principle enunciated in Bonnard v. Perryman, cannot be applied after the advent of the Human Rights Act, 1998. But, unfortunately for Mr.S.Doraisamy, the Queen’s Bench, after considering the judgments in Greene v. Associated Newspapers Ltd, (cited supra) and Bonnard v. Perryman, has finally concluded as follows:
“Although all are first instance decisions, they have consistently applied the principle identified by Laws http://www.judis.nic.in 46 J (Vernons case). Notwithstanding my real misgivings that this line of authority has given a presumptive priority to Article 10 that can no longer be justified, I do not feel able to depart from it. The principle is too well established, and the doctrine of precedent means that I am bound to follow it” (emphasis applied) I therefore, find that the applicants have not established that they come under any of the exceptions to the general principle of law that there cannot be a pre-trial injunction restraining publication unless it is shown that the publications are either absolutely false or that they are made with any mala fide intention.
48. Yet another contention of Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the applicant in OA No.204 of 2019 remains to be answered. It is that the repeated publication of the allegations would impede the investigation by the Directorate of Vigilance and Anti-corruption, which has at least commenced a preliminary enquiry pursuant to the complaints made by the first respondent. Reliance is also placed on the judgment of the Hon’ble Supreme Court in Sahara India Real Estate Corporation http://www.judis.nic.in 47 Limited and Others v. Securities and Exchange Board of India and Another, reported in 2012 (10) SCC 603, even in the said decision, the Hon’ble Supreme Court has pointed out the parameters for passing a postponement order. They are
(i) real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice
(ii) necessity
(iii) proportionality
49. The criminal investigation in the case on hand is at a very primary stage and even in Sahara India Real Estate Corporation Limited case, the Hon’ble Supreme Court had dealt with coverage of Court proceedings and reporting of Court proceedings and other judicial orders. It is for the Court which deals with such proceedings to decide, as to whether, there should be a postponement of coverage of Court proceedings. I am not dealing with the Writ Petition filed by the respondents seeking initiation of Criminal proceedings. If it all, the question of postponement could be considered it should be only by the Division Bench, which is dealing with the Writ Petition and not me.
50. In Dr.Shashi Tharoor v. Arnab Goswami and Another, http://www.judis.nic.in 48 reported in 2017 SCC online Del 12049, a learned Single Judge of the Delhi High Court, has considered the question of grant of prohibitory injunction restraining reporting of any news, which was subject matter of the criminal investigation, the learned Single Judge of the Delhi High Court after having considered the judgment in Sahara India Real Estate Corporation Limited, concluded that the defendants have the right to have their story and the same cannot be curbed. I am therefore of the considered opinion 1that the publication of the allegations as has been made by the respondents do not constitute a real and substantial risk of prejudice to fairness of the trial, as pointed out by the Hon’ble Supreme Court in Sahara India Real Estate Corporation Limited.
51. Mr.R.S.Akila, learned counsel appearing for the second respondent would contend that this very suit itself is not maintainable and has to be thrown out. She would also contend that this suit is in the nature of a SLAPP Suit, which has been brought about only to curtail the freedom of speech and to terrorise the respondents with the claim for damages and thereby prevent them from making their publications. The concept of SLAPP suits (Strategic Lawsuits against Public Participation) is described as a strategy adopted by persons, who are affected by such publications, he would terrify the publishers. George W.Pring in his Article on SLAPPs in the http://www.judis.nic.in 49 Pace Environmental Law Review 3, Volume 7, Issue I, 1989, has observed as follows:
“What emerges is a gripping profile of a new and, we believe, growing legal risk for ordinary citizens who speak up on community political issues. Filers of SLAPPs seldom win a final victory in Court, yet seem to achieve their political purposes. Targets seldom lose legally, yet frequently are devastated and depoliticized – “chilled” in first amendment vernacular.”
52. Hon’ble Mr.Justice S.Ravindra Bhat, as he then was, had also dealt with phenomenon of SLAPP Suits in Tata Sons Limited v. Greenpeace International & Another, reported in 2011 SCC online Del
466. It is not uncommon that persons filed such suits claiming phenomenal substantial damages for alleged defamation even though they are aware that they are not going succeeded in their claim only with a view to prevent others from publishing any material which may damage or impair their reputation. Here again I must as a matter of judicial discipline refrain from elaborating further as the respondents have already filed applications http://www.judis.nic.in 50 seeking rejection of the plaints in some of the cases which have to be dealt with separately.
53. In view of the foregoing reasons, I conclude that the applicants have not made out a prima facie case for grant of an injunction, balance of convenience is also not in their favour, inasmuch as, the respondents have raised the defence of justification and have also produced materials which prima facie show that the publications made are not entirely false.
54. In the result all the Original Applications and Application No.1663 of 2019 are dismissed. I must add that none of my observations contained herein above, shall have any bearing on the trial of the suits. However, in the circumstances, there will be no order as to costs.
03.06.2019 Index : Yes/No Internet: Yes/No Speaking order/Non Speaking Order jv http://www.judis.nic.in 51 R.SUBRAMANIAN,J.
jv Pre Delivery Order OA Nos.18, 25, 40, 41, 42, 43 & 44, 152, 204 and 275/ 2019 in CS Nos.21, 29, 42, 44, 45, 40, 41, 136, 163 and 199 of 2019 and Application No.1663 of 2019 in CS No.163 of 2019 03.06.2019 http://www.judis.nic.in