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KARNATAKA HIGH COURT
L. Narayana Swamy and P.S. Dinesh Kumar, JJ.
Association for Democratic Reforms Represented by its Chairman and Authorised Representative Trilochan Sastry – Appellant
versus
Election Commission through its Chief Electoral Officer Karnataka Having its Office at Office of Chief Electoral Officer irvachana Nilaya Maharanis College Circle – Respondent
Writ Petition No.15399 of 2019
Decided on 12.4.2019
Counsel for the Parties:
Ashok Haranahalli, Advocate, Sudarshan Ramesh, Advocate, B.N. Harish, Advocate
IMPORTANT POINT
Injunction cannot be granted by going against constitutional mandate.
Headnote:
Civil Procedure Code, 1908 – Order XXXIX Rule 1 and 2 – Constitution of India – Article 19(1)(a) – Grant of injunction – Plaintiff had filed application for order of temporary injunction restraining defendants from telecasting, transmitting, publishing, distributing, sharing any material with print media, newspaper, TV channels, local cable operators etc., any false, malicious, defamatory and derogatory news concerning to plaintiff directly or indirectly – Trial Judge, by impugned order has restrained defendants from making defamatory statements against plaintiff – What is defamatory can be tested and decided only if an act of making a statement or telecasting a program is challenged by aggrieved person before appropriate forum – Defendants are not prevented from publishing or telecasting any news item which is not defamatory in their opinion – In case plaintiff is aggrieved by any such publication or telecast of any news item, he may approach Election Commission of India.
Held: Article 19(1)(a) of the Constitution gives ‘Freedom of Speech and Expression’ to every citizen.
The learned Trial Judge, by the impugned order has restrained the defendants from making ‘defamatory statements’ against the plaintiff. What is ‘defamatory’ can be tested and decided only if an act of making a statement or telecasting a program is challenged by the aggrieved person before an appropriate forum.
Therefore, in our view, the defendants are not prevented from publishing or telecasting any news item which is not defamatory in their opinion. In case plaintiff is aggrieved by any such publication or telecast of any news item, he may approach the Election Commission of India. (Paras 14, 15 and 16)
Result: Writ Petition disposed of with observation.
JUDGMENT
A non-party in the suit, has approached this Court in this public interest writ petition, with a prayer inter alia to quash an order passed by a Civil Court on an application filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short ‘CPC’) in a suit.
2. Petitioner claiming to dedicate itself to bring reforms in conducting elections in a free and fair basis has presented this writ petition with following prayers:
(a) Issue a writ, order or direction in the nature of certiorari quashing the Impugned Order dated 29.03.2019 passed on IA No.1 of 2019 in OS 2526 of 2019 by the Learned XIX Additional City Civil and Session Judge, Bengaluru which is at Annexure A;
(b) Issue a writ, order or direction in the nature of mandamus to the Respondent No.1 to enforce the norms and modalities in respect of publication of information and opinion about the contesting candidates that it has already laid down;
(c) Pass such further orders as the Hon’ble Court may deem fit in the interests of justice and equity.”
3. We have heard Shri. B.N. Harish, learned Advocate for the petitioner and Shri. Ashok Haranahalli, learned Senior Advocate for second respondent.
4. Second respondent filed a suit registered as O.S. No.2526/2019 in the City Civil Court, Bengaluru against various newspaper publishing houses, TV channels, Whatsapp, Youtube, Facebook, etc. The averments contained in the plaint disclose that plaintiff is fielded as a candidate to contest election from Bangalore South Lok Sabha Constituency in the ensuing elections. It is averred that certain people who are inimically disposed towards him were making efforts to tarnish his image by circulating false messages produced in document No.1 annexed to the plaint. Along with the plaint, plaintiff filed an application under Order XXXIX Rules 1 & 2 of the CPC for an order of temporary injunction restraining the defendants from telecasting, transmitting, publishing, distributing, sharing any material with the print media, newspaper, TV channels, local cable operators etc., any false, malicious, defamatory and derogatory news concerning to the plaintiff directly or indirectly. The learned Trial Judge has passed following order:
Order
“As per I.A.No.1, Ad-interim ex-parte T.I. is granted against defendants and defendants. (Sic.) The defendants are hereby restrained from making defamatory statements against the plaintiff in any manner in electronic or printing media as prayed in I.A.No.1 till defendants appear and file their objections to I.A.No.1.
The plaintiff shall comply with Order 39 Rule 3(a) of CPC.
Issue suit summons, emergent notice of I.A.No.1 and Ad-interim ex-parte T.I. Order to all the defendants if P.F. paid within 3 working days from the date of this order.”
Returnable by 27/5/2019
Sd/-
XIX Addl. City Civil Judge, Blore.
5. Petitioner has assailed the interim order passed by the learned City Civil Judge mainly on the following grounds:
that the voters/citizen form the most vital part of Democracy. Democracy expects openness which is a hallmark of a free Society. The right to get information is a natural right flowing from Democracy. In the absence of relevant information, voters will be casting votes based on one sided information;
the purpose of Press is to advance public interest by publishing facts and opinion without which electorate cannot make a responsible judgment. The impugned order restraining the Press and publication of news is violative of ‘Freedom of Press’ enshrined in the Constitution.
6. Shri. Harish, submitted that the impugned order is in the form of a ‘gag order’ and it has ‘chilling effect’ on free flow of information. He relied upon following authorities in support of his case:
1. Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329
2. State Through Special Cell, New Delhi, (2003) 6 SCC 641
3. R. Rajagopal alias R.R.Gopal and another, (1994) 6 SCC 632
4. Brij Bhushan and another Vs. State of Delhi, (1950) A
