The Delhi High Court has recalled its earlier interim direction restraining digital news portal “The Wire” from publishing any future content similar to an article alleged to be defamatory by former Delhi Chief Secretary Naresh Kumar.
The single-judge Bench of Justice Anup Jairam Bhambhani on Monday ruled that courts could not issue speculative injunctions against publications that did not yet exist, observing that such a blanket prohibition amounted to an impermissible prior restraint on free speech.
The High Court modified an interim order passed in November 2023 in a civil defamation suit filed by Kumar, deleting the direction that prohibited The Wire from publishing or circulating any future articles similar to the impugned report.
Justice Bhambhani held that the earlier restraint was overly broad, presumptive and founded on a hypothetical possibility that future reporting might also be defamatory.
It observed that whether a publication was defamatory depended on its actual contents and the legal defences available, including truth, fair comment, public interest and qualified privilege, all of which could be examined only after publication and not in anticipation.
The Court, however, declined to interfere with the earlier direction requiring the removal of the impugned article and the identified social media posts.
It held that the question of whether the published report was defamatory involved disputed questions of fact and law that could only be adjudicated after evidence was led during trial. The takedown direction woudl continue to operate until the conclusion of the defamation proceedings.
The dispute arose from a report published by The Wire on November 9, 2023, concerning land acquired by the National Highways Authority of India (NHAI) for the Dwarka Expressway project.
The article questioned the enhancement of compensation for around 19 acres of land in Bamnoli village from about Rs 41.52 crore to Rs 353.79 crore and alleged links between the family of a beneficiary and the son of the then Delhi Chief Secretary Naresh Kumar.
Following the enhancement of compensation, the Union Ministry of Home Affairs initiated action against the then South West Delhi District Magistrate Hemant Kumar, who had approved the revised compensation.
Kumar filed the defamation suit alleging that the publication falsely suggested his involvement in wrongdoing, damaged his reputation and deliberately omitted material facts.
He contended that he had himself initiated administrative action against the District Magistrate, including recommending disciplinary proceedings and a Central Bureau of Investigation (CBI) inquiry, well before the article was published, but these facts were not fairly reflected despite being brought to the notice of the journalists.
According to the plaintiff, the report was published with reckless disregard for the truth and was actuated by malice.
The defendants denied the allegations and defended the publication, relying on material including a preliminary inquiry report submitted by the then Delhi Vigilance and Revenue Minister Atishi regarding the land acquisition process.
They argued that the report concerned matters of public importance and was protected by the constitutional guarantee of freedom of speech and expression.
Examining the maintainability of the suit, Justice Bhambhani observed that the article related to Kumar’s discharge of official functions as the Delhi Chief Secretary. However, the Court held that this fact alone did not defeat the defamation claim.
Since the plaintiff had specifically alleged reckless disregard for truth, suppression of material facts and malice, and these allegations required appreciation of evidence, the Court held that the issues could only be determined during trial and not at the preliminary stage.
While considering the legality of the earlier injunction restraining future publications, the Court held that Indian defamation law did not permit a general gag order merely because a previous publication was under challenge.
It observed that a court could not presume that every future article on the same subject would necessarily be defamatory. Such a prospective restraint would amount to censorship before publication and would be inconsistent with settled principles governing prior restraint, freedom of speech and defamation jurisprudence.
Relying on established Indian and English precedents, including R. Rajagopal vs State of Tamil Nadu, Bonnard v. Perryman and Fraser vs Evans, the Court reiterated that injunctions against future publications can be granted only in exceptional circumstances and not on speculative apprehensions.
Holding that paragraph 30(iii) of the November 2023 interim order could not be sustained in law, the Court recalled that portion of the order while allowing the remaining interim directions, including the takedown of the impugned article and identified social media posts, to continue until the civil defamation suit is finally decided.
The application seeking modification of the interim order was accordingly disposed of.
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