2024 INSC 255 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 4602 of 2024

(Arising out of SLP (C) No.6696 of 2024)

Bloomberg Television Production Services

India Private Limited & Ors. …Appellants

VERSUS

Zee Entertainment Enterprises Limited …Respondent

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

1.Leave granted.

2.On 01 March 2024, an ex-parte ad interim order was passed by the ADJ 05 of the

South Saket Courts, New Delhi

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directing the appellants (a media platform, one of

its editors, and the concerned journalists) to take down an article dated 21

February 2024 published on their online platform within a week. The appellants

were also restrained from posting, circulating or publishing the article in respect

1 “trial Judge”

of the respondent-plaintiff on any online or offline platform till the next date of

hearing.

3.The order of the trial Judge indicates that the discussion, after recording the

submission of the respondent, commences at paragraph 7. The only reasoning

which is found in the order of the trial Judge is in paragraphs 8-9, which read as

follows:

“8. I have noticed that in Dr. Abhishek

Manu Singhvi (Supra), Chandra Kocha r

(Supra), Swami Ramdev (Supra), ex-parte

ad interim injunction was passed, considering

that the contents of the material in question

was per se defamatory.

9. In my view, the plaintiff has made out a

prima facie case for passing ad interim ex-

parte orders of injunction, balance of

convenience is also in favour of plaintiff and

against the defendant and irreparable loss

and injury may be caused to the plaintiff, if

the injunction as prayed for is not granted. In

view thereof, defendant no.1 and defendant

no.2 are directed to take down the article

dated 21.02.2024 (page 84 to 86 of the

plaintiff’s document) from online platform

within one week of receipt of this order. The

defendants are further restrained from

posting, circulating or publishing the

aforesaid article in respect of the plaintiff on

any online or offline platform till the next date

of hearing.”

4.The order of the trial Judge has been upheld by a Single Judge of the High Court

of Delhi by order dated 14 March 2024.

2

The Single Judge of the High Court

seems to have had doubts about the maintainability of the appeal, but that point

need not be laboured any further having regard to the provisions of Order XLIII of

2 “Impugned Order”

the Code of Civil Procedure 1908.

5.The three-fold test of establishing (i) a prima facie case, (ii) balance of

convenience and (iii) irreparable loss or harm, for the grant of interim relief, is

well-established in the jurisprudence of this Court. This test is equally applicable

to the grant of interim injunctions in defamation suits. However, this three-fold

test must not be applied mechanically,

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to the detriment of the other party and in

the case of injunctions against journalistic pieces, often to the detriment of the

public. While granting interim relief, the court must provide detailed reasons and

analyze how the three-fold test is satisfied. A cursory reproduction of the

submissions and precedents before the court is not sufficient. The court must

explain how the test is satisfied and how the precedents cited apply to the facts

of the case.

6.In addition to this oft-repeated test, there are also additional factors, which must

weigh with courts while granting an ex-parte ad interim injunction. Some of these

factors were elucidated by a three-judge bench of this Court in Morgan Stanley

Mutual Fund v. Kartick Das ,

4

in the following terms:

“36. As a principle, ex parte injunction

could be granted only under exceptional

circumstances. The factors which should

weigh with the court in the grant of ex

parte injunction are—

(a) whether irreparable or serious mischief

will ensue to the plaintiff;

(b) whether the refusal of ex parte

injunction would involve greater injustice

than the grant of it would involve;

(c) the court will also consider the time at

3 Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, para 38.

4 (1994) 4 SCC 225.

which the plaintiff first had notice of the

act complained so that the making of

improper order against a party in his

absence is prevented;

(d) the court will consider whether the

plaintiff had acquiesced for sometime and

in such circumstances it will not grant ex

parte injunction;

(e) the court would expect a party applying

for ex parte injunction to show utmost

good faith in making the application.

(f) even if granted, the ex parte injunction

would be for a limited period of time.

(g) General principles like prima facie case,

balance of convenience and irreparable

loss would also be considered by the

court.”

7.Significantly, in suits concerning defamation by media platforms and/or

journalists, an additional consideration of balancing the fundamental right to free

speech with the right to reputation and privacy must be borne in mind.

5

The

constitutional mandate of protecting journalistic expression cannot be

understated, and courts must tread cautiously while granting pre-trial interim

injunctions. The standard to be followed may be borrowed from the decision in

Bonnard v. Perryman .

6

This standard, christened the ‘Bonnard standard’, laid

down by the Court of Appeal (England and Wales), has acquired the status of a

common law principle for the grant of interim injunctions in defamation suits.

7

The Court of Appeal in Bonnard (supra) held as follows:

“…But it is obvious that the subject-matter

of an action for defamation is so special as

to require exceptional caution in exercising

the jurisdiction to interfere by injunction

before the trial of an action to prevent an

anticipated wrong. The right of free speech

5 R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.

6 (1891) 95 All ER 965.

7 Holley vs. Smyth, (1998) 1 All ER 853.

is one which it is for the public interest that

individuals should possess, and, indeed,

that they should exercise without

impediment, so long as no wrongful act is

done; and, unless an alleged libel is untrue,

there is no wrong committed; but, on the

contrary, often a very wholesome act is

performed in the publication and repetition

of an alleged libel. Until it is clear that an

alleged libel is untrue, it is not clear that

any right at all has been infringed; and the

importance of leaving free speech

unfettered is a strong reason in cases of

libel for dealing most cautiously and warily

with the granting of interim injunctions.”

(emphasis supplied)

8.In Fraser v. Evans,

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the Court of Appeal followed the Bonnard principle and

held as follows:

“… in so far as the article will be defamatory of

Mr. Fraser, it is clear he cannot get an

injunction. The Court will not restrain the

publication of an article, even though it is

defamatory, when the defendant says he

intends to justify it or to make fair comment on

a matter of public interest. That has been

established for many years ever since

(Bonnard v. Ferryman 1891 2 Ch. 269). 'The

reason sometimes given is that the defences of

justification and fair comment are for the jury,

which is the constitutional tribunal, and not for

a Judge. But a better reason is the importance

in the public interest that the truth should

out. …”

(emphasis supplied)

9.In essence, the grant of a pre-trial injunction against the publication of an article

may have severe ramifications on the right to freedom of speech of the author

and the public’s right to know. An injunction, particularly ex-parte, should not be

granted without establishing that the content sought to be restricted is

8 [1969] 1 Q.B. 349.

‘malicious’ or ‘palpably false’. Granting interim injunctions, before the trial

commences, in a cavalier manner results in the stifling of public debate. In other

words, courts should not grant ex-parte injunctions except in exceptional cases

where the defence advanced by the respondent would undoubtedly fail at trial. In

all other cases, injunctions against the publication of material should be granted

only after a full-fledged trial is conducted or in exceptional cases, after the

respondent is given a chance to make their submissions.

10.Increasingly, across various jurisdictions, the concept of ‘SLAPP Suits’ has been

recognized either by statute or by courts. The term ‘SLAPP’ stands for ‘Strategic

Litigation against Public Participation’ and is an umbrella term used to refer to

litigation predominantly initiated by entities that wield immense economic power

against members of the media or civil society, to prevent the public from knowing

about or participating in important affairs in the public interest.

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We must be

cognizant of the realities of prolonged trials. The grant of an interim injunction,

before the trial commences, often acts as a ‘death sentence’ to the material

sought to be published, well before the allegations have been proven. While

granting ad-interim injunctions in defamation suits, the potential of using

prolonged litigation to prevent free speech and public participation must also be

kept in mind by courts.

11.The order of the trial Judge does not discuss, even cursorily, the prima facie

strength of the plaintiff’s case, nor does it deal with the balance of convenience

or the irreparable hardship that is caused. The trial Judge needed to have

9 Donson, F.J.L. 2000. Legal Intimidation: A SLAPP in the Face of Democracy. London, New York:

Free Association Books.

analysed why such an ex parte injunction was essential, after setting out the

factual basis and the contentions of the respondent made before the trial Judge.

The trial Judge merely states, in paras 7-8, that the court has “gone through the

record available as on date” and noticed certain precedents where an ad-interim

injunction was granted. Without even cursorily dwelling on the merits of the

plaint, the ad-interim injunction granted by the trial Judge amounts to

unreasoned censorship which cannot be countenanced.

12.Undoubtedly, the grant of an interim injunction is an exercise of discretionary

power and the appellate court (in this case, the High Court) will usually not

interfere with the grant of interim relief. However, in a line of precedent, this

Court has held that appellate courts must interfere with the grant of interim relief

if the discretion has been exercised “arbitrarily, capriciously, perversely, or where

the court has ignored settled principles of law regulating the grant or refusal of

interlocutory injunctions.”

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The grant of an ex parte interim injunction by way of

an unreasoned order, definitely falls within the above formulation, necessitating

interference by the High Court. This being a case of an injunction granted in

defamation proceedings against a media platform, the impact of the injunction on

the constitutionally protected right of free speech further warranted intervention.

13.In view of the above, the High Court ought to have, in our view, also at least

prima facie assessed whether the test for the grant of an injunction was duly

established after an evaluation of facts. The same error which has been

committed by the trial Judge has been perpetuated by the Single Judge of the

10 Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726, para 128;

Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd., (2023) 1 SCC 634, para 37.

High Court. Merely recording that a prima facie case exists, that the balance of

convenience is in favour of the grant of injunction and that an irreparable injury

would be caused, would not amount to an application of mind to the facts of the

case. The three-fold test cannot merely be recorded as a mantra without looking

into the facts on the basis of which an injunction has been sought. In the absence

of such a consideration either by the trial Judge or by the High Court, we have no

option but to set aside both the orders of the trial Judge dated 1 March 2024 and

of the Single Judge of the High Court dated 14 March 2024. We do so accordingly.

14.Since the proceedings are now listed before the trial Judge on 26 March 2024, we

direct that it would be open to the respondents to renew their application for

injunction, on which the trial Judge shall pass fresh orders after hearing the

parties and bearing in mind the observations which are contained in the above

segment of the judgment and order. All the rights and contentions of the parties

are kept open in that regard. In the event that the appellants seek to contest the

application for injunction, they shall file their reply before the trial Judge before

the next date of listing.

15.It is clarified that the above segment of the judgment and order may not be

construed as a comment on the merits of the present case. The purpose of the

above segment is to provide the broad parameters to be kept in mind while

hearing the application for an interim injunction.

16.The appeal is accordingly disposed of in the above terms.

17.Pending applications, if any, stand disposed of.

…….……....…...….......………………… ..CJI.

[Dr Dhananjaya Y Chandrachud]

…………......…........……………….…........J.

[J B Pardiwala]

....……….....…........……………….…........J.

[Manoj Misra]

New Delhi;

March 22, 2024