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The Madras High Court recently had occasion to reiterate that pre-trial injunctions gagging the freedom of speech can only be granted in the rarest cases. The Court highlighted this while dismissing a group of applications filed to restrain NGO Arappor Iyakkam from publicising certain allegations concerning favouritism in the award of public contracts. Justice R Subramanian observed,
“… 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.”
The applications were filed by state Minister for Municipal Administration, SP Velumani and a independent contractors who alleged that Arappor Iyyakam had been making wild allegations against them to injure their reputation. In response, Velumani sought for an award of Rs 1 crore as damages.
The applications were filed in the wake of a PIL filed by Arappor Iyyakam alleging that Velumani had abused his powers to promote cartelization and bid-rigging in the award of public corporation contracts, in order to favour his close aides and benamis. The High Court had issued notice in this matter earlier this year.
Justice Subramanian, however, dismissed all applications on finding that Arrappor Iyyakkam had made out a prima facie case that their freedom of speech and expression cannot be gagged when the same was exercised in public interest. The Court found,
“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.”
Inter alia, the Court relied on the principles espoused in the English case of Fraser v Evans, wherein it was observed that the publications of even defamatory articles cannot be restrained if it is meant to be a fair comment in public interest. As said of Lord Denning in that case,
“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.“
The Court highlighted that while all citizens were entitled to the fundamental right to privacy, the contentious publications did not touch upon the private lives of the applicants. The judge remarked,
“… it is clear that all publications cannot be prevented in the guise of protection of right to privacy.“
The Court noted that even in the KS Puttaswamy case which had laid down that the Right to Privacy is a Fundamental Right under Article 21 of the Constitution,
“... 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.“
Since Arrappor Iyyakkam had not made any comments on the private lives of the applicants, as defined above, the Court ruled that it could not be restrained from exercising the freedom of speech and expression. Justice Subramanian also pointed out that the NGO had made out a prima facie case that their allegations were not completely without basis. He said,
“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.”
Moreover, it was observed that being a public servant, Velumani could not claim immunity from scrutiny touching upon acts done in his official capacity. Justice Subramaniam observed,
“… he [Velumani] 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.”
Among other cases, the judge also quoted Justice NH Bhagawati in the case of Kartar Singh v State of Punjab to highlight,
“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.”
In view of these observations, the Court dismissed all the gag applications, also noting that there is nothing to suggest that NGO was acting with malafides or that there was a real and substantial risk of prejudice to justice by its actions.
The Court held, however added that its observations should not have any bearing on the pending case brought by Arappor Iyyakkam against Velumani.
Senior Advocate Dr V Suresh and Advocate RS Akila made arguments defending Arappor Iyyakkam in the matter. The applicants were represented by Senior Advocate TR Rajagopalan, Advocate V Elangovan and Advocates S Doraisamy and A Sathiyamurthi.
Read the order: